Centre for Internet & Society

The decision came a day before PM embarked on a visit to the US, where he is expected to meet leaders of firms such as Apple, Facebook, Google and Tesla.

The article was published in Business Standard on September 23, 2015. Sunil Abraham gave inputs.

The government on Tuesday scrapped a draft that mandated firms and individuals to allow authorities access to all encrypted information on email, apps, websites and business servers.

The decision came a day before Prime Ministerembarked on a visit to the US, where he is expected to meet leaders of firms such as Apple, Facebook, and Tesla. Activists and executives from technology firms had expressed outrage on the draft policy, saying the move would have taken India a step back in technology adoption.

At a meeting of the Union Cabinet on Tuesday, Modi was livid at the controversy generated by the draft policy and directed officials to withdraw it ahead of his US trip, sources said.

The draft had global ramifications, as Facebook,and messaging apps such as were named in it.

Ravi Shankar Prasad, Union minister for communications and information technology, distanced the government from the draft hosted on the IT department site, but admitted it gave “uncalled-for misgivings”. He directed officials to rework the draft but did not set a timeframe for seeking feedback from the public.

“Yesterday (Monday), it was brought to our notice that the draft had been put in the public domain for, seeking comment. I read the draft. I understand that the manner in which it was written could lead to misconceptions. I have asked for the draft policy to be withdrawn and reworded. I personally feel some of the expressions used in the draft are giving rise to uncalled-for misgivings,” Prasad said. “Experts had framed the draft policy. It is not the government’s final view.”

According to the original draft, the encryption policy sought every message sent by a user, be it through services such as WhatsApp, an SMS or an email, be mandatorily stored in plain text format for 90 days and made available on demand to security agencies. Failure to do so, it added, would draw legal action.

This was because typically, all messaging apps and services such as WhatsApp, Viber, Line, Google Chat and Yahoo! Messenger have high levels of encryption, which security agencies find hard to crack and intercept.

Early on Tuesday, before Prasad announced the withdrawal of the draft policy, the government had issued an addendum to keep social media and web applications such as WhatsApp, Twitter and out of its purview.

In a three-point clarification, the Department of Electronics and Information Technology (DeitY) said some encryption products were exempt. “Mass-use encryption products, currently being used in web applications, social media sites and social media applications, such as WhatsApp, Facebook and Twitter…SSL/TLS encryption products being used in internet banking and payment gateways, as directed by the Reserve Bank of India”, and SSL/TLS encryption products being used for e-commerce and password based transactions,” it said.

“Ideally, the new policy should only focus on two objectives: It should mandate encryption standards within the government, military, law enforcement and intelligence agencies. It shouldn’t regulate the use of encryption by the private sector; the private sector should be allowed to use whatever it believes is appropriate, as long as it is considered a reasonable security measure by courts, under section 43A of the IT Act,” said Sunil Abraham, director,(CIS).

Prasad reiterated the government, under the leadership of Prime Minister Narendra Modi, had promoted social media activism. “The right of articulation and freedom we fully respect. But at the same time, we need to acknowledge that cyber space transaction is rising enormously for individuals, businesses, the government and companies,” he said.

Opposition parties slammed the Draft policy. Congress communications in-charge Randeep Surjewala said, “Subjugation of individual freedom, surveillance of the citizen and suppression of dissent have emerged as the DNA of the Narendra Modi-led BJP government. The draft policy on encryption, first circulated, then amended and now, withdrawn with a rider for re-issuing it, is a totalitarian, misconceived and a failed attempt of the Modi government to override all sense of individual freedom of speech and expression and encroach upon the right to privacy of communication…With 243.1 million internet users in India at the end of 2014 (173 million being mobile internet users), 112 million Facebook users, 80 million WhatsApp users, 22 million Twitter users and 950 million mobile connections, the intrusion of individual liberty is fraught with dangerous dimensions under the Modi government.”

Aam Aadmi Party spokesperson Raghav Chadha said, “Only a fascist government can bring such a policy. The draft policy was in violation of the right to personal liberty and the fundamental tenets of freedom of speech and expression…the draft policy was for snooping. It presupposes the 1.2 billion people of India are potential criminals. It reflects the inclination of the government and its intention to turn India into a totalitarian state.”


Five things the government  draft policy wanted

  • Information security for individuals, businesses and government agencies
  • Development of indigenous encryption standards
  • Use of digital signatures to authenticate transactions
  • Legal interception and data retention
  • Service providers to register under appropriate government agency

Things that caused outrage

  • Regulation of private sector encryption
  • Storage of all encrypted communications for

90 days

  • Gaining backdoor into private communications of users

Amendment & withdrawal

  • Omission of mass encryption products such as those used by social networks
  • Withdrawal of draft policy following Ravi Shankar Prasad’s statement
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