Will social media firms submit to Indian law?

“Wherever law ends, tyranny begins”. These words by the great libertarian, John Locke, ring right considering the contumacious conduct of large social media companies while operating in India, and their failure to submit to Indian law.

Social media companies today enjoy a substantial global presence, having user bases transcending physical and political borders around the world. The influence that these companies wield over the Internet, and on the worldwide flow of information, is unprecedented in human history, and the law has been playing catch up for several years now. The lack of regulation, or the difficulty faced in their implementation, has allowed these companies, including Facebook (and subsidiary WhatsApp), Twitter, and Google (and ancillary services like YouTube and the erstwhile Google+) to operate with impunity with no effective oversight. Now, when the law is finally trying to catch up,  because of the citizens, courts and governments becoming increasingly conscious of the issues and concerns that these platforms are provoking, we find the social media companies going up in arms, striving to stave off every effort at regulation and supervision.

Today, there are over 1.6 billion social network users worldwide, with over 64 percent of internet users accessing social media services online. Facebook has only 210 million users in the US, but it has the largest market in India with 300 million users in India. Google touches over 400 million users through Android and its ancillary services in India. This widespread use has changed the way we communicate, not just mutually but also with the government. The ease that the internet has given us also has led to sharing of personal data, location history, personal chats with friends, family and loved ones, images, videos and other data which companies are storing permanently and monetising it. Given this backdrop, regulating online speech and the platforms that facilitate such speech, and ensuring that there is parity of freedoms and limitations online and offline is a matter of grave public importance. A significant attribute of this regulation includes allowing access to the governments to such a speech, to enable them to maintain law and order, and to perform their functions in the prevention and detection of crimes.

Recognising this, the Indian Union had notified the 'Information Technology (Intermediaries guidelines) Rules, 2011' imposing certain duties on intermediaries (which includes social media companies), to “provide information or any such help to Government Agencies which are lawfully authorised to perform investigative, protective, Cybersecurity activity”. These guidelines have remained a dead letter, primarily because of the failure of the social media companies to reply to the requests made by the authorities. In Tamil Nadu, they have mostly rejected valid claims for information made by authorities on various pretexts including the premise that simple domestic law requests do not suffice, and that they rely only on international treaties. The stand taken here by these companies appears to be conveying that they are not subject to Indian law.
This belligerent stance taken by the social-media companies has directly resulted in the failure of law enforcement agencies to detect and solve crimes-leading to an unchecked proliferation of fake news, mob actions, lynchings, child pornography and human trafficking and other offences. The negative attitude of social media concerns are as a result turning into an insurmountable roadblock to detect and investigate even regular crimes, where communication between perpetrators now happens online. With such an irresponsible attitude giving rise to law and order issues arising due to the failure of the companies to comply, the question that arises is whether we should subject them to reasonable control, to protect our citizens and preserve the social-fabric of our country.

The words of the American President, Theodore Roosevelt, in his State of the Union speech to the US Senate and House of Representatives, dated 7th December 1903, could point us in the correct direction: “No man is above the law, and no man is below it; Nor do we ask any man's permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favour.”

It further begs the question - whether we should allow companies that do not submit to or comply with Indian laws to store and monetise data of Indian citizens, at overseas locations where again there appears to be no legal oversight at all. The question of safety of the data, on limitations on access for monetisation or political gains, on privacy (being a fundamental right under Indian law) remain unanswered, and are at the moment entirely in the realm of self-regulation and commercial whims of these unnaturally massive and influential private entities. The motives of such companies that are working solely for-profit are therefore strongly suspect. This uneasiness assumes a more noteworthy suspicion from their past conduct-Facebook and its breaches with Cambridge Analytica, and sporadic data leaks such as one just last week leading to a leak of over 400 million users’ phone numbers; Google and Facebook generating their primary revenue stream by monetisation of user data for targeted advertising, not forgetting the misuse of data in elections such as the Indian election in 2014 and the US election in 2016, both of which received widespread media coverage.

There also remain grave concerns on the quality of information that is being circulated online-where Facebook regulates its platform to remove pornography and hate speech that violates its ‘community standards’. However, in a democracy, private companies have no locus to set ‘community standards’ on types of speech-these have to be determined by democratically elected leaders, reflecting the will of the people. Failure to do so would severely restrict
the freedom of expression of the people and allow private for-profit companies to manipulate speech (and thus public opinion and elections) for commercial gains. Election spending by political parties already represents a significant revenue stream for these companies. Equally, while these companies have no stake in the maintenance of law and order in the country, it is for democratically elected Governments and subsequently the Courts to ensure that people live in a crime-free environment.

Last year a petition was filed in the Madras High Court seeking greater regulation of social media companies in India, by requiring them to authenticate new profiles and appointing a task force to monitor rising instances of cybercrimes.

The High Court, after seeking the view of the authorities, went into great detail on the question of ‘originator information’, the traceability of forwarded messages back to the source. Remarkably, the High Court, in the best traditions of open government heard all stakeholders and issued a notice to the various social media companies (who all entered an appearance and submitted to the jurisdiction of the High Court). The Honourable Court during its proceedings could not only ensure a meeting between the authorities and the social media firms but was also able to create a platform for compliance of 2011 rules in letter and spirit through a collaborative effort. It also included suggestions from the public in the determination. Throughout the court proceedings the social media firms, played along. But as the matter was reaching fruition, Facebook albeit belatedly approached the Supreme Court vide a transfer petition, stating that the issue related to “substantial questions of general importance” and as such, should be heard by The Supreme Court.

Shockingly, it filed a petition full of misrepresentations, containing incomplete order sheets, which only stifled but did not bring on record the pleadings filed by the parties. Facebook's efforts to hoodwink our highest court, with the sole intention of avoiding potentially meaningful orders from the Madras High Court did not yield desired results. On failing to obtain a stay of the High Court proceedings in the Supreme Court, Facebook filed Special Leave Petition challenging the orders of the High Court in the Supreme Court. This was done
with the intent to ensure that the High Court which was all set to hear final arguments and conclude the matter would not be in a position to do so for as
long as possible.

Interestingly, this transfer petition came close on the heels of an affidavit filed
by Professor V. Kamakoti before the Madras High Court. Professor Kamakoti, a senior professor at IIT Madras and a member of the National Security Advisory Board that advises the Prime Minister's Office, gave the High Court its suggestions on how WhatsApp could incorporate ‘originator information’ within its encryption, to ensure that even when the content of the message remained encrypted, they could still share the originator's information every time someone forwards the message. This affidavit also gave multiple proposals on how we could implement this technically, and the court was about to hear arguments on this aspect of the matter too.

By abusing the process of the Indian legal system, Facebook (and WhatsApp) are revealing they have no reverence whatsoever for Indian law and have no intention to comply with our legal system, and they through such conduct are aggravating the issues faced by local law enforcement agencies in crime prevention and detection. The direct consequence of these unsolved crimes is lawlessness in the society, a breakdown of law and order, which ensures that criminals, including rapists, murderers, and cybercriminals, remain unmonitored and unchecked on the streets of India. As lawlessness caused by cybercriminals and social media users do not affect social media enterprises financially, they have no incentive to act. Now, the cases pending before the Supreme
Court has been listed for further adjudication on September 24.

Apart from these concerns on speech, security of data and compliance with investigations, countries globally are also concerned with the taxability of these companies, who earn massive revenue in India but are not subject to any local taxes, having registered themselves in tax havens such as Ireland, and the anticompetitive behavior they exhibit through sheer dominance of the online marketplace, and its misuse by bundling of services to the exclusion of other, newer (and thus smaller) competing services.

Under the circumstances, it becomes incumbent upon the government and the courts to ensure that the companies operating in India (either offline or online), comply with Indian law. Just as telecom companies share data with law enforcement authorities to solve cases, online social media companies should also be subject to the same constraints, and in case they fail or refuse to get
regulated, we should force them to wind up operations, in the nation’s security’s interest, public order and integrity and sovereignty of India. The “social media corporations” must understand that we are not trying to come in the way of their business, but we are only seeking to protect our citizens especially our innocent children, from criminals. Social media enterprises in India have a responsibility to help law enforcement in getting at the criminals by sharing the data needed by the law enforcement to bring the offenders to justice.