IT rules: IT rules seriously infringe on privacy, says IFF in response to government FAQ

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The Internet Freedom Foundation (IFF) has
published a 12-point fact check of the Government’s FAQ on Part II of the Information Technology Rules, 2021, which it published on Monday. The rules themselves were notified in February and went into effect on May 26. Part II of the IT Rules deals with intermediary due diligence and the government grievance mechanism.

The Department of Electronics and Information Technology (MeitY) said the FAQ was intended to “provide clarity” on the rules and “explain the nuances of due diligence” that intermediaries must follow, but IFF said many of the claims were presented as facts in the document. .

The first of these was MeitY’s claim that it invited public comment on the draft rules in December 2018 and adopted the rules based on the comments and suggestions it received. The IFF said that although there was indeed a public consultation in 2018, the 2021 IT rules are “drastically different” from the draft that was published at the time. “No public consultation has been held for this version of the rules,” he said.

The IFF also said the government’s assertion that the rules “focus on protecting individuals’ online privacy and are consistent with the fundamental right to privacy” was incorrect. He said the rules are not compatible with the right to privacy and in fact seriously undermine the right to privacy. “In particular, Rule 4(2) significantly weakens end-to-end encryption, which has now become the privacy standard for mobile messaging platforms,” ​​IFF said. Rule 4(2) states that messaging platforms such as WhatsApp, Facebook Messenger and Telegram “must permit the identification of the first author of information on its computing resource, as may be required by a court order issued by a court or competent authority”.

The IFF has hit back at the government’s assertion that intermediaries should only be able to trace the original sender of a message or message when instructed to do so. Instead, he said, these services should enable first-sender traceability for all texts, at all times, “since it is impossible to predict which message may receive an order against it for the tracing of the first sender”.

The new IT rules have been challenged in various courts since they came into effect earlier this year. Two high courts – Bombay and Madras – have suspended parts of the rules that seek to regulate digital news publishers and OTT platforms that have a physical presence in India or “carry out a systematic commercial activity of making content available in India” .

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On August 14, the Bombay High Court suspended sub-rules (1) and (3) of Rule 9 of the IT Rules, which require digital news media and online publishers to adhere to the “Code of Ethics”. which is part of the rules. He said that on their face both provisions infringed the fundamental right to freedom of expression and also ran counter to the substantive provisions of the Information Technology Act 2002. The following month, the Madras High Court suspended the same two clauses and declared the suspension to take effect across India, Livelaw reported.

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