The Supreme Court, on 13 July, asked whether the government wanted to tap the people's WhatsApp messages and create "a surveillance state", as it took note of the Information and Broadcasting Ministry's decision to set up a social media hub to monitor online data.
The top court agreed to hear a PIL filed by a Trinamool Congress legislator from West Bengal, raising the question whether the government wants to tap the citizens' messages on WhasApp or other social media platforms.
A bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud sought the Centre's response on the plea by TMC MLA Mahua Moitra and sought Attorney General KK Venugopal's assistance in the matter.
Does the government want to tap its citizens’ WhatsApp messages? It will be like creating a surveillance state.The Supreme Court bench
Senior advocate AM Singhvi, appearing for Moitra, said the government has issued a Request For Proposal (RFP) and the tender will be opened on 20 August for a software which would do a 360 degree monitoring on all social media platforms like WhatsApp, Twitter, Instagram and track e-mail contents.
"They want to monitor social media content with the help of this social media hub," Singhvi said, adding that the RFP violated fundamental Right to Privacy and Articles 14, 19(1)(a) and 21 of the Constitution.
The bench then listed the matter on 3 August, before the opening of tender on 20 August , and directed that the AG or any law officer for the government will assist the court in the matter.
Background
On 18 June, the apex court had refused to accord urgent hearing on the plea seeking to stay the Ministry’s move to set up a ‘Social Media Communication Hub’ (SMCH) that would collect and analyse digital and social media content.
The plea, filed through advocate Nizam Pasha, said "the impugned RFP invites proposals to select a bidder for the Supply, Installation, Testing and Commissioning (SITC) of software to SMCH of Ministry of Information and Broadcasting and provision of service and support for function, operation and maintenance of SMCH ".
In May this year, the Broadcast Engineering Consultants India Limited (BECIL), a Public Sector Undertaking under the ministry, had floated a tender to supply a software for the project.
The legislator from Karimpur constitutency of West Bengal said the SMCH "is being set up with the clear objective of surveillance of activities of individuals such as herself on social media platforms".
In her plea, she said that such intrusive action on part of the government was “not only without the authority of law, but brazenly infringes” her fundamental right to freedom of speech under Article 19(1)(a) of the Constitution and violated her right of privacy.
"That being so, the impugned RFP along with its addenda and corrigenda deserves to be quashed and set aside as being arbitrary, illegal and unconstitutional," her plea said.
Raising concerns, she said the proposed SMCH seeks to create a technology architecture that merges mass surveillance with a capacity for disinformation. "It aims to create a technology platform to collect digital media chatter from all core Social Media Platforms as well as digital platforms. Such mass collection of data is collected right up to a granular, individual level."
It quoted the RFP as saying that the platform should "support easy management of conversational logs with each individual with capabilities to merge it across channels to help facilitate creating a 360 degree view of the people who are creating buzz across various topics," she said.
The petition said that a technology is required to have the capability to listen for and collect data not only from social media platforms but also from e-mails.
"Specific capabilities mentioned include live search, monitoring, collecting, indexing and storage of personal data including location-based data and meta-data. The ability to monitor individual social media user/account is a specific mandate being given to the service provider", the PIL said.
The WhatsApp, which was recently under fire over fake and provocative messages being circulated on its platform, had informed the IT and Electronics Ministry that it has the ability to prevent spam but since it cannot see the content of private messages, blocking can be done only based on user reports.
Detailing the proactive steps to tackle abuse on its platform, WhatsApp had said it retains limited information and is end-to-end encrypted but this privacy protection has trade-offs in form of "the inability to see problematic content spreading through private conversations on our app".
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