What Centre will tell Supreme Court on Aadhaar and social media account linkage

The article by Amrita Madhukalya was published in Hindustan Times on August 28, 2019. Gurshabad Grover was quoted.

The Centre will refer to the Aadhaar Act and the Supreme Court’s 2017 privacy judgement when it is directed by the top court to put forward its view on whether the unique identification number should be made mandatory in opening and managing accounts on Facebook, Twitter, WhatsApp and other social media platforms.

“While we are yet to receive a notice from the SC asking for our reply, the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016, and the apex court’s 2017 judgement upholding the Right to Privacy will guide us in drafting a response,” a senior official of the ministry of electronics and information technology, who did not wish to be named, said.

The top court had held in the Aadhaar case that the government can make the linking of the 12-digit-number mandatory only in the case of availing subsidies and welfare benefits. Consequently, Section 57 of the Aadhaar Act was struck down.

As a division bench of Madras High Court continues to hear two writ petitions on whether social media profiles should be linked to Aadhaar so that users in cases where pornographic material, fake news and communal content is posted on these sites can be traced, Facebook had simultaneously filed a plea to transfer all similar cases in the high courts of Madras, Bombay as well as Madhya Pradesh. The top court will hear the matter on September 13.

During its hearings, Madras High Court made it clear that it will not rule on Aadhaar-linking and the case will concentrate on traceability now. As of now, only one of the transfer petitions, the one in Jabalpur, deals with Aadhaar linking.

Meanwhile, the top court has already asked social media companies for their stand on the matter. Senior lawyers Mukul Rohatgi and Kapil Sibal, who have been representing Facebook and WhatsApp respectively in Madras High Court case, have already said that as both the companies are headquartered outside of India, with operations in dozens of countries, the high court’s judgement will have ramifications globally.

Both Twitter and Google declined to comment on the matter, as the matter is sub-judice, while Facebook was not available.

However, in March this year, Facebook CEO Mark Zuckerberg said that privacy, encryption and secure data storage were some of these principles while unveiling the company’s “vision and principles” in building a “privacy-focused” social platform.

Wherein people can have “clear control over who can communicate with them and confidence that no one else can access what they share”, such communication could be secure with end-to-end encryption, and Facebook will not store sensitive data in countries with “weak records on human rights”.

Gurshabad Grover of the Centre for Internet Security says he welcomes the Centre’s stand but adds that the petition should not have been allowed by the Madras High Court in the first place.

“The case is now deliberating on policy, which is the responsibility of the government. This goes against the basis of separation of power,” he says.

The Centre is dealing with issues surrounding traceability through the Intermediaries Guidelines, which is due in the next few weeks.

The solution, Grover says, lies in diplomatic negotiations.

“Instruments like the US’ Clarifying Lawful Overseas Use of Data Act can come in handy if India can fight for better executive agreements there, provided we have data protection laws in line with human rights standards,” he said.