'Facebook's Privacy Concerns Not Genuine As Its Business Model Is Commercialization Of User Data' : TN Govt Opposes Transfer Plea

The Tamil Nadu government has filed a counter affidavit questioning the bonafides of the petition filed by Facebook Inc seeking transfer of the cases in High Courts to the Supreme Court.

Terming the privacy concerns raised by the social media giant a 'red herring', the counter-affidavit stated that it cannot raise privacy concerns as "its primary business model is the use and commercialization of users' data. Referring to the 'Cambridge analytical scandal", the affidavit proceeded to state that such data was shared with political parties and businesses for "targeted advertising".

Facebook has approached the Supreme Court seeking transfer of PILs pending in the High Courts of Madras, Bombay and Madhya Pradesh which seek linking of social media accounts with Aadhaar. The transfer is sought on the ground that the issue is highly sensitive so as to impact the privacy of users and therefore deserved consideration by the Supreme Court.  Referring to the nine judge bench decision in Puttaswamy case, Facebook has said that linking of social media account with Aadhaar will lead to invasion of privacy right.

In this regard, the Tamil Nadu Government has said that the Madras HC was not considering the prayer for Aadhaar-social media linkage anymore and was examining the issue of traceability of originators of fake news and offensive messages for the purposes of crime detection.

The HC proceedings relate to the "prevention and detection of crimes, traceability of originator information to counter fake news and mob violence", stated the affidavit. Describing the matter before the Madras HC as "one of grave importance, seeking effective compliance of large multinational companies with the letter and spirit of Indian laws", the affidavit went on to state how Facebook and other social networking sites have been rejecting requests made by police for information about cyber offenders. 

The affidavit contained statistical data of  Chennai Cyber Cell sending 1,940 requests for information in connection with various investigations between 2016-18. Among these, 885 requests were sent to Facebook, 101 to Gmail, 155 to YouTube and 11 to Whatsapp.  All the State Police got in reply was the I.P. (Internet Protocol) log details on 484 requests. Among these, 211 were sent by Facebook, 268 by Gmail, four by YouTube, one by Twitter and zero by WhatsApp. The companies refused to part with information in 1,456 cases, stated the affidavit.

The Madras HC has sought the opinion of experts to analyze the issue. The Court has received an expert opinion which has suggested means to trace the originator of messages in Whatsapp. The transfer petition has been belatedly filed by Facebook apprehending orders of the HC in that regard, alleged the affidavit drawn by Additional Advocate General Balaji Srinivasan and settled by State Advocate General Vijay Narayan.

"These companies (social media companies) are continually failing to comply/cooperate with law enforcement agencies and as such do not deserve any discretionary relief from this Court (SC).  These proceedings have been filed to scuttle the proceedings before the High Court and to keep the issue in question pending for the foreseeable future", said the affidavit.

The State referred to how WhatsApp (a subsidiary of Facebook), cognisant of the issue of fake news, had set up an "India tipline" number in April this year to help users cross-check information received in their mobile phones but refused to involve law enforcement agencies in the exercise.

Considering the transfer petition on Friday, the SC bench of Justices Deepak Gupta and Aniruddha Bose sought the response of the Union of India to the case.

"We are not inclined to hear the matter on its merits. We will decide whether the case comes to this court or remains with HCs. If the govt is contemplating something in the very near future, then it'll influence our decision.", Justice Deepka Gupta, heading the bench, observed.

Solicitor General Tushar Mehta submitted that the Centre is not opposed to transfer of the case. When the bench enquired if the Centre was contemplating any law on the issue, the Solicitor General replied that he will get instructions on that aspect.

The matter has been adjourned to September 24 for hearing.

Proceedings in Madras HC

On July 24, the Court had sought for the expert opinion of Dr Kamakoti, Professor of IIT Madras, regarding means to trace the originator of Whatsapp messages. He suggested two ways :-

• One, to encrypt the originator's information in a forwarded message, which can be decrypted by any receiver of the message.
• Two, the originator's information can be encrypted using a special private key which will be known only to Whatsapp. The recipients will not be able to decrypt the originator's message. In case of offensive, the police can request Whatsapp to provide the private key to decrypt originator's identity.

On April 25, the bench of Justices S Manikumar and Subramonium Prasad had directed the Tamil Nadu Government to arrange an interactive session between law enforcement agencies and social media intermediaries to discuss means to detect online crimes and control cyber abuse and misinformation.

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