Societies have long realised the need to provide collective security for all to ensure sustainable development and prosperity. Providing collective security involved imposing some form of social control to regulate individual and group behaviour through gathering information about individuals. In the modern information age, a good government can ensure collective security through efficient use of information for law enforcement without necessarily encroaching upon individual privacy.  

Countries around the world have enacted laws to ensure that such information could be collected easily through various sources to help in achieving the wider societal goal of collective security. The US enacted the Stored Communications Act (SCA) in 1986 to require the internet service providers (ISPs) to provide content and metadata on stored emails to the government agencies under certain conditions. As this law soon became outdated due to rapid technological advances, the US passed the Communication Assistance for Law Enforcement Act (CALEA) that required the telecom companies to redesign their networks to facilitate wiretapping by the government agencies. Later, in 2005, it was expanded to cover ISPs and services like Skype, etc.   

UK and Australia have gone even further in enacting laws that require device makers and software developers to provide access to encrypted data. The Investigative Powers Act 2016 and the Investigatory Powers Regulations 2018 in the UK provide sweeping powers to the intelligence and law enforcement agencies to carry out both targeted and bulk interception of internet communications and hack into devices to access data. The Telecommunications Assistance and Access Act 2018 of Australia gives broad powers to the government agencies to require communication service providers (CSPs) to decrypt any communication.

The raging debate in India over the ‘traceability’ provision in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 must be understood in the context of the need for ensuring collective security as a social good. The rules require the significant social media intermediaries to identify the first originator of a message in India for investigation of grave offences relating to the sovereignty and integrity of the country, crimes against women and children, etc. that are punishable with a minimum prison term of 5 years.

Critics have claimed that this provision would seriously undermine privacy and force the intermediaries to break the end-to-end encryption. However, the rules make it very clear that what is required to be provided by the intermediaries is only the metadata about the first originator of the offending message, and not its contents.  The message itself needs to be provided by the law enforcement agencies to the intermediaries. There is no attempt to make them break any encryption. With such safeguards built into the rules, the provision cannot be termed as harming privacy. In fact, the rules place much less onerous obligations on the intermediaries for sharing information compared to what several other countries have mandated, as noted earlier.

The law and the evolving jurisprudence in this domain in India have provided strong safeguards for ensuring freedom of expression and privacy. The upcoming Personal Data Protection Bill aims to further enhance this legal framework for protection of personal data and online privacy subject to reasonable checks in the interest of collective and national security. John Locke, a famous 17^th century philosopher and the “Father of Liberalism”, argued in his Second Treatise of Civil Government that individuals needed a strong government to be able to exercise their individual rights and liberties.  

There need not necessarily be a trade-off between privacy and collective security. Collective security is just as essential to make people feel safe and allow them to enjoy their privacy protections to function effectively as individuals.  The new IT Rules seek to achieve that larger social good.

(The above article appeared in The Economic Times on 10th October 2021. It is available at: https://economictimes.indiatimes.com/tech/catalysts/traceability-vs-privacy-the-real-issue-is-of-collective-security/articleshow/86721078.cms?from=mdr. The views are personal.)