Final pdf 24 January 2020

The International News Weekly Edit
06
January 24, 2020 | Toronto
The
Protect Right To Privacy
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Strike CAA Down
Refugee persecution must
be assessed on a case by
case basis, not on that of
religion
The constitutionality of the Citizenship (Amendment)
Act must be fast decided by Supreme Court in
the wake of the widespread protests that it has provoked.
Centre has shown no intention of altering
CAA provisions and it falls upon SC to restore the
primacy of constitutional values. CAA as passed by
Parliament has an inherent bias against Muslims.
The apex court has given the government four more
weeks to respond to the petitions against CAA – perhaps
to give it enough time to come up with the best
possible arguments it can marshal given that those
advanced so far look weak and unconvincing. Centre’s
argument that CAA provides relief to minorities
of six religions living as illegal migrants in India
after fleeing religious persecution in Pakistan, Bangladesh
and Afghanistan – where Islam is the state
religion – is ridden with contradictions galore.
For example, take the United Arab Emirates,
which also has Islam as its state religion. If the government
takes the position that it’s therefore a theocracy
that’s persecuting its minorities, it should
strongly discourage Indians of all denominations
(or at least all non-Muslim denominations) from
travelling there. But there’s no sign of such a policy
in place. Or take another example: Buddhism is Sri
Lanka’s state religion and thousands of Sri Lankan
Tamils are languishing as illegal migrants in India
for several years. Their exclusion in this mass citizenship
drive is inexplicable.
Perhaps the Centre means to make a distinction
between nations that have a state religion and those
governments gripped by religious fundamentalism
(such as Pakistan). But in that case, why does CAA
equate Pakistan with friendly nations such as Bangladesh
or Afghanistan? Moreover, CAA also operates
on flawed notions of religious persecution. Arguably,
religious fundamentalists target the “apostate” who
is considered a deviant from the state religion – like
Ahmadiyyas in Pakistan – with even greater fervour
than the non-believing “infidel”. Even Baloch nationalists
whose cause India espouses, Bangladeshi atheists,
or Myanmar’s Rohingyas fleeing various shades
of persecution may be living as illegal migrants in
our midst but don’t make the cut under CAA.
Under the Citizenship Act’s naturalisation process
for legally entering aliens 2,830 people from
Pakistan, 912 from Afghanistan and 172 from Bangladesh,
many of them Muslims, were granted citizenship
in the past six years. Extending this naturalisation
facility to illegal migrants fleeing persecution,
irrespective of country and religion, would be both
humane and helpful in mending the CAA-engineered
gaping hole in India’s secular fabric. TNN
Petition to make social media traceable strips the
privacy right of all meaning
Mishi Choudhary & Eben Moglen
A current proceeding
earlier before the Madras
high court but now transferred
to the Supreme
Court of India threatens
fundamental harm to the
freedom of expression on
the internet, not only in
India but elsewhere in the
world. The pending petition
seeks to require that
Facebook make all WhatsApp
messages traceable
to their originator through
the linkage of identity information
(mobile phone
or, perhaps, Aadhaar numbers)
to all messages exchanged.
It should hardly be necessary
– given the Supreme
Court’s judgment in Justice
KS Puttaswamy and Anr
vs Union of India and Ors
which confirmed that we
have a fundamental right
of privacy – to say that this
petition must be dismissed
as an affront to our basic
constitutional freedom.
But technology is hard
and law around it complicated,
therefore, sweeping
statements about terrorism
and nationalism are made
by counsels in court forcing
the judges to become
experts in matters far beyond
most people’s expertise.
They are expected to
not only understand the
intricacies of technology
but also ensure innovation
is not curtailed, all along
addressing the fear mongering
of new uses of technology.
Facebook is also entirely
justified in objecting
that it could not possibly
satisfy such an order without
fundamentally compromising
the architecture
of WhatsApp not only in
India, but also throughout
the world. WhatsApp is a
credible communications
system because it provides
“end to end” encryption of
the messages it carries, ensuring
that Facebook itself
cannot read the contents
of our communications.
Facebook can, it is true,
determine the identity of
any message’s sender and
recipient, but if A sends to
B a message that B then forwards
to C, because Facebook
cannot see the content
of the messages it cannot
tell that what B sent C was
originally written by A.
The demand for traceability
is therefore a demand
that Facebook compromises
the security of all communications
it handles.
By now, many of us are
accustomed to observing
technologists who find law
challenging and lawyers
who understand no technology
and policy makers
who are expected to know it
all but are usually lost balancing
several competing
interests. Most law officers
for the government assisting
the court nonetheless
inform the court that if
only Facebook understood
its technology as well as
they understand it, everybody
would see at once that
down is up, light is dark
and left is right.
To give an example of
how hard an intersection of
law, technology and policy
can get: this petition is supported
by filing of academics
including renowned
names from IITs. We have
great respect for them and
others who are really trying
to assist matters here
but cannot find gold keys
where none exist. One such
submission says that Facebook
can be required to add
the identity information of
each message originator to
the message itself before it
is “end to end” encrypted,
allowing every communication
to be traced back
through the chain of forwarding
to its original
source.
Thus, A sends a message
to B which is “tagged”
as coming from A. B decrypts
the message, and forwards
it to C, who receives
it with the included “tag”
identifying A, and decrypts
it in his turn. If C finds the
message “disturbing”, he
can then complain to law
enforcement authorities
with A’s identity in hand.
The submission says that
this does not require Facebook
to compromise encryption.
That’s narrowly
true: Encryption is formally
undisturbed, but the privacy
encryption designed
to protect is destroyed anyway.
Obviously this mechanism
destroys A’s privacy,
if for example she didn’t
want her message to B forwarded
and is now being
pursued by the government
at the behest of C. According
to the submission this
is no problem, because A
has a remedy: B has broken
an implicit contract with A
by forwarding the message
over A’s implicit objection,
violating a relationship of
trust which (he says) must
have existed between A and
B in the first place.
But this advice ignores
how law operates. Government
here orders an unconstitutional
invasion of privacy,
directing F to destroy
the privacy of A, as well as
other intermediate recipients
of A’s message. But
though A’s right against
government has been vitiated,
that has been theoretically
replaced by a private
action against B.
From the lawyer’s point
of view, this is preposterous.
Unconstitutional action
is not acceptable just
because a party harmed
by the state can potentially
bring a contract action
against some non-governmental
private party. Also,
if you have ever dealt with
the Indian legal system,
saying go to court if you
are worried about privacy
in this age is the most ineffective
way of getting any
relief.
Many well-intentioned
observers have pinned all
their hope on the recently
tabled Personal Data Protection
Bill, 2019, to protect
citizens from the ever
broadening reach and
greed of companies and
other entities for our data.
While India does need
such a law urgently, in no
way can this address the
problems being presented
by this case where all citizens’
privacy and security
is held ransom to check
the notoriety of a few malicious
players.
In our view, the Supreme
Court should reaffirm
that the fundamental
right of privacy under Article
19 recognised in Puttaswamy
protects both the
secrecy and the anonymity
of our personal communications,
and prevents GoI
or its courts from ordering
technological intermediaries
to breach those rights
on its behalf. The government’s
law officers should
be required to tell the Supreme
Court whether they
wish to stand behind this
witch’s brew, or whether
the technologies of totalitarianism
are unacceptable
in the world’s largest democracy.
Source Credit: This article
was first published in The Times
of India. Mishi Choudhary is
legal director of Software Freedom
Law Centre, New York.
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