SC to examine govt access to social media accounts

A terrorist or a person involved in anti-national activities can't claim a right to privacy, the Union government told the Supreme Court on Tuesday. It was defending its move to revise rules to govern social media platforms like Facebook and Twitter.

"In order to deal with the threat from those engaged in terrorist and anti-national activities, and in the larger public interest, we are revising the rules. There is no ploy employed here. Can a terrorist claim privacy? I can't believe it," Solicitor General Tushar Mehta said.

He was responding to a contention made by senior advocate Shyam Divan, who appearing for Internet Freedom Foundation, opposed any move to seek information from individuals profiles and accounts on social media.

A bench of Justices Deepak Gupta and Aniruddha Bose allowed a plea by Facebook Inc to transfer matters pertaining to providing information on individuals' profiles from Madras High Court and other high courts, to the top court.

The Supreme Court directed that the petition, along with all connected matters, be placed for consideration in January 2020.

Attorney General KK Venugopal, appearing for Tamil Nadu, said that the state would have no objection for transfer of cases. His submission came on an instruction received from Advocate General Vijay Narayan. The Tamil Nadu government had earlier opposed the transfer plea by Facebook Inc.

Venugopal said the social media companies can't establish a system without decryption. They can't come to the country with such a system since they are subject to laws and would have to facilitate decryption. There are penal provisions, he said.

"In the US, they are sending it to outside agency. Nobody prevents you to take a system of decryption. Question is if we can force them," the bench said.

"Prima facie, we don't agree. We are not technically qualified to do this. Technology is improving by every minute" the bench added.

Venugopal said, "The state of Tamil Nadu and police, which investigated serious offences, would be satisfied if the social media companies give us the entire system on which they are recording it."

Divan said the validity of rules has already been separately challenged before the Supreme Court. He said the Madras HC case should not be transferred as substantial hearing had already taken place over there.

"These are momentous occasions. The rights of citizens are being trampled upon. This court should restrain from making any observations," he said.

"There are freedom issues. If some observations are going to be made by the SC here and there, we are opposed to it, it would be premature," Divan added.

Senior advocate Mukul Rohatgi, appearing for Facebook Inc, said: these are important issues, pending in various high courts, there is already a nine-judge bench decision in right to privacy. "There is no such mandate in law to give the key to the law enforcement agencies. I don't have the keys," he said.

"Balancing is clearly given in the rules. If it is a question of utmost importance and it affects the rights of citizens; if balancing is required, the question is if different high courts can proceed. I am caught in the middle between the right to privacy and no privacy," he said.

A draft Information Technology Intermediaries Guidelines, 2018 was published last year and comments were invited from the public, even as the extant 2011 rules stated that an individual has a right to seek redressal and protection of his reputation and dignity.

The government has sought three more months to finalise and notify fresh rules.