By Pragya Dhoundiyal, Law Center-1, Faculty of Law, Delhi University.
The government of India recently came up with a draft of the National Encryption Policy which is also in place in many other countries. However, our draft has been compared to the drafts of some of the regressive countries of the Middle East because it appeared to be a backward looking policy. The stakeholders and the public were invited for their insightful comments on the same; the last date for which was 16th October, 2015. But it was written off with such strong emotions of the experts and the public alike, that the government had to call it back. The government has accepted that there did exist certain ambiguities and at the same time had given the assurance that the requisite changes would be made. Since, it has not been made clear as to what changes exactly is the government contemplating, the public at large remains apprehensive.
Before entering into any analysis, it is first important to understand what exactly does encryption mean? Encryption is used by many service providers to ensure that the privacy of the sender and receiver is maintained. The moment one clicks on the send button, the message is encrypted, i.e., coded in such a way that only the intended receiver on receiving the message can read it, so that nobody expect the receiver can in any manner decode the message. This was initially used by the military and the diplomats who dealt with highly sensitive information, but as time progressed and technological advances were made, the world came closer which gave rise to privacy issues of individuals.
‘To ensure secure transactions in Cyber Space for individuals, businesses and Government, a National Encryption Policy is required’, is the reason given by the Government for the necessity of implementation of such a policy. Any piece of legislation is not to be looked at in isolation but in the times that necessitate it and whether the public policy so demands. At present, not only India but the whole world is facing the threat of the ever expanding IS base and power. They get most of their new recruits through online public forums. The reach of their tentacles and seriousness of the matter can be gauged by the fact that even an Indian Army officer’s child was more than willing to offer her services for their cause. There are many children who are lured by the false majestic portrayal of their future; ultimately girls are used to satiate their men’s lust and also to carry their children so as to build a reliable army and the boys are simply used as pawns to fight their battles. The gravity of the matter cannot be overlooked. Another problem that is relatively specific to India is the constant threat that is lurking on the borders, where the situation already seems quite tense and illegitimate attempts to enter the Indian Territory to create chaos are being made every now and then. In such a situation, it is only natural for a paranoid government to try to bring everybody under the radar. This seems to be a matter of security of nation versus right to privacy.
The main problem that the government faces is that a lot of service providers are not registered in India but still have a huge consumer base in India, WhatsApp being one such example. Not only are they not registered in India, but most of them have their servers outside India which does raise concerns for the security of our nation. This was the very same driving force that led the government to strictly lay down its terms of registration to Blackberry which provided the encryption facility in BBM. In such cases, the government feels a little helpless as it cannot ask for access to messages in cases of suspicion. It would either mean that all the service providers would have to either get themselves registered in India to continue or the public will have to suffer because of the limited options.
The draft asked the people to keep a record of all their chats for a period of 90 days, i.e. 3 months and violation of this would be considered illegal and would attract punishment. Due to the limitation of storage capacity of various gadgets, it becomes impossible at times to store each and every transaction. Also, it is not uncommon for such errors to creep in that formatting the gadget, without a chance to save the requisite files, is required which wipes out everything. Storage issues apart, there is a constant threat of hacking. Hacking has the capability of undoing all the good that the policy is capable of doing. The sensitive transactions taking place online are very much susceptible to such misdeeds. So, the Government will have to first put in place a strong anti-hacking law to proceed or would have to teach people the security measures to be adopted, but the draft was silent on all these aspects.
People in general are also apprehensive because of the clause that clearly stated that individuals will have to show their records both in the plain text and the software that encrypted it. This can very well turn into a draconian provision to harass people like the provision of sedition that has time and again been invoked. Some political parties even termed it as an attempt to snoop into their affairs. The common man is really worried about violation of the right that is so fundamental to their existence, their right to privacy that is integral to right to life. But, amendments to such effect that only on grounds of reasonable and strong suspicion can somebody be called, might save the face of the policy.
To sum it up, it is a fact that the internet has been misused by some miscreants and such notoriety needs to be checked as it is very easy to hide one’s true identity on the Internet, one can have an insidious existence in total anonymity. Fundamental rights can be curbed in public interest, but the government will have to prove the necessity of such a law. Efforts should be made by the government to take a more holistic look at the matter and to come up with a policy that has a bare minimum effect on the rights of the individual.
Right now, all that the people of India can do, is to wait in anticipation for a progressive looking policy that does not compromise on any front, which we know is easier said than done.