Law of the land Should Reign Supreme

Last year the world marked the 75th anniversary of the end of the Second World War. Apparently, it may seem that from that era onward, the world perhaps has been at peace. Not really though in reality. The World War was followed by the Cold War in addition to foreign intelligence agencies playing the dubious role of instigating regime changes, coups, civil wars and disintegration of states. This was followed by the emergence of non-state actors including terror groups. Over the decades, the world also witnessed the emergence of giant industrial conglomerates, many of which in today’s era are bigger than some countries in terms of net assets and annual turnovers when compared to GDP of many nations.

Though not very often, there have also been instances of allegations being put on global corporate entities to even force regime changes in smaller countries to suit their business interests. In between, intermittent wars, border skirmishes and perpetual battles have continued. In other words, it has been 75 years since the end of the Second World War; the world knows well that it has hardly been at peace since then.

Over the last one decade, the world also saw the rise of a new breed called social media intermediaries. What apparently started as ubiquitous platforms for people to connect with each other and celebrate life, have also now become some of the most powerful tools for waging information warfare and also for disseminating disinformation that at times have demonstrated ability to wreak havoc within nations, destabilise incumbent governments, trigger massive violence and even give rise to civil wars. Yet surprisingly, even as these organisations continue to become an inseparable part of people’s lives, earning hundreds of millions of dollars from respective countries, they have often shown a tendency to not follow the rules of the land. Headquartered elsewhere, mostly in the West, and operating in respective counties with skeletal manpower while maintaining data centres offshore, social media platforms in less than a decade are bringing massive upheavals in the manner in which sovereign states run their affairs and maintain public order in their respective domains.

Herein arises some of the most fundamental questions surrounding these indispensable yet recalcitrant breeds. Can the CEO of a social media company dictate terms to a sovereign state with a billion-plus population? Are all social media companies inherently neutral as they often claim to be? Should the rules, policies and principles of the respective social media intermediaries be allowed to supersede the rules and regulations of sovereign states in which they operate? And in case such a scenario arises, should it be allowed or should the sovereign state must firmly put its foot down and make such entities to relent? What if the CEO of a concerned social media platform is known to have a specific ideological leaning and drafted rules and regulations as per the ideology, and regulate posts and comments in the platform as per the same instead of being an absolutely neutral carrier of information and posts? Would that not be akin to foreign interference in the domestic politics of a country? Also, what if a specific post that has become viral ends up creating furore in the nation even when that post is based on incorrect information and has been part of a plan to disseminate disinformation to create havoc in a society? In such a scenario, is it not the right of the law enforcement agencies of the concerned sovereign state to seek information about the origin of that post? Can then the concern platform take the excuse of privacy to deny details of the original author of the post?

And finally, what happens to the data generated from users by these tech giants? In today’s era when data is worth its weight in gold, whose property is it? Is not the personal data of a nation’s people the sovereign resource of the state? Should it not stay within the country? What if it becomes a saleable commodity for tech giants? Can that be freely allowed? It is these questions that have compelled countries to come up with laws on data security and for regulating social media intermediaries.

Also, while, no one denies that privacy is extremely important, at the same time when countries face a multitude of challenges, wherein there has even been instances of Pakistan-based terrorists having activated their WhatsApp on a Pakistani sim card and then having entered India dumped the Pakistani sim card and replacing it with an Indian one, even while continuing WhatsApp communication on the Pakistani number that become virtually impossible to trace and thwart an impending terror attack, would then privacy of the user be more important than national security? This is where the privacy logic of tech giants does not hold good

One needs to look back at what happened early this year when Donald Trump’s twitter account was permanently disabled by Twitter. Interestingly for all the grand talks of ‘freedom of speech’, the fact remains that not only Trump’s twitter handle was disabled permanently, Jack Dorsey, the CEO of Twitter tweeted on this issue, ‘If folks do not agree with our rules and enforcement, they can simply go to another internet service.’ In other words, Jack Dorsey’s literal ‘My Way or Highway’ approach is as much against genuine liberalism as those he loathes for being illiberal perhaps

One may or may not agree with Donald Trump’s views, but as a platform is it the job of twitter to permanently disable the account of a former President of the United States? On this Jack Dorsey had mentioned, ‘I believe this was the right decision for Twitter. We faced an extraordinary and untenable circumstance, forcing us to focus all of our actions on public safety. Offline harm as a result of online speech is demonstrably real, and what drives our policy and enforcement above all.’

Now the key question is this: if Jack Dorsey meant that the online speeches or tweets of Trump were having ‘offline harm’ in the form storming of Capitol Hill and its siege, and which was extremely condemnable in any case, can the Twitter CEO then equally accept that the violence surrounding Black Lives Matter movement also had similar trajectory of provocative online speeches with hashtags of Black Lives Matter that did have ‘offline harm’ in the form of nationwide violence, arson, loot and riots in US? Did in that case Jack Dorsey consider banning BLM tweets or was that violence justifiable for him? If so, then can Twitter openly claim to be neutral? In other words, can Twitter vouch that not a single tweet of Black Lives Matter movement was ever responsible for the violence that followed on the streets of American cities?

In the same league, can the CEO of Twitter or any other social media platform openly vouch that their platforms have not been used for mobilising people, getting global traction and for triggering the Arab Spring violence in several sovereign states of the Middle East? The Arab Spring Saga: Also Known as ‘Twitter Revolutions’

It was only a few years back that the world witnessed the Arab Spring, which created havoc in several countries in the Middle East and even triggered civil wars. The role of social media in amplifying local incidents to create global furore and anger against certain regimes is well known. This then spilt over on to roads followed by violent retribution by the incumbent regimes, which in turn resulted in further mobilization of people, all albeit done through social media and messaging sites, to organize people, money and at times even possibly weapons, which eventually led to devastating civil wars. Multiple nations in Middle East witnessed this and got devastated while some of the others were compelled to ban some of these sites temporarily. This in itself proves the power of social media in triggering mayhem just as much as it has been extremely critical in bringing positive changes in some other spheres. Therefore, the need to regulate it, and not controlling, is important.

In fact, an article by Peter Beaumont in The Guardian, published in February 2011, titled, The truth about Twitter, Facebook and the uprisings in the Arab world, wondered, ‘Recent events in Libya, Tunisia and Egypt have been called ‘Twitter revolutions’ – but can social networking overthrow a government?’

In the whole article while the author mentioned about how social media sites had played a critical role in amplifying incidents in select countries to create a narrative that triggered the Arab Spring, a vindication of how social media sites can literally rock nations or regions, he added an interesting caveat in the end where he stated, ….‘Which is not to say that everything broadcast over social media sites has been either accurate or reliable. The unedited and unmediated nature of the stories that have been told have led to inaccuracies, which have sometimes proven beneficial to those opposing the regime.

One of these narratives – created right at the beginning – was the story of Bouazizi himself. The story of a university graduate forced to sell fruit who killed himself when he could not even do that proved to be incendiary. Except one of the key facts wasn’t true. Bouazizi not only hadn’t been to university, he had not even completed his school baccalaureate’.

This acknowledgement itself opens a Pandora’s Box because it was self-immolation of Bouazizi in Tunisia that triggered the Arab Spring and here now it casts real time doubts about the authenticity of the cause for which Bouazizi died. This is exactly why the issue raised by the Government of India in terms of asking social media platforms to give names of originators of mischievous posts is so relevant because one fake news amplified by social media a million times can create major upheaval to the extent of rocking a nation from its core.

While most people and especially some from opposition parties have been confusing the stand of the Government in terms of asking social media platforms to comply with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as a vindictive stand due to the controversy related to the ‘manipulated media’ tag, the issue at stake is far more profound than a typical BJP vs Congress issue. What is important is whether India’s rules are to succumb to the dictums of foreign CEOs of Tech Giants or the law of the land shall reign supreme. Constructive criticism is most welcome from all sides and opposition parties criticising the incumbent regime is a way of life in a democracy. That however does not mean that Tech Giants that run social media platforms are above the law of the land and can play the role of judge, jury and executioner with social media posts as per their discretion without any uniformity.

In fact, it is to be kept in mind that India is not the only country which has framed such laws. As per a communique of Government of India, “In July 2019, the governments of the United Kingdom, United States, Australia, New Zealand and Canada issued a communique, concluding that: ‘tech companies should include mechanisms in the design of their encrypted products and services whereby governments, acting with appropriate legal authority, can gain access to data in a readable and usable format’ Brazilian law enforcement is looking for WhatsApp to provide suspects’ IP addresses, customer information, geo-location data and physical messages.”

Florida’s new law that authorizes stringent penalties on social media platforms for removing ‘conservative ideas’ from their posts vindicate that the tyranny of the unelected is now being challenged in many places. As Florida Governor Ron DeSantis states, “Some of these massive, massive companies in Silicon Valley are exerting a power over our population that really has no precedent in American history,”…. “One of their major missions seems to be suppressing ideas.”

Also, while, no one denies that privacy is extremely important, at the same time when countries face a multitude of challenges, wherein there has even been instances of Pakistan based terrorists having activated their WhatsApp on a Pakistani sim card and then having entered India dumped the Pakistani sim card and replacing it with an Indian one, even while continuing WhatsApp communication on the Pakistani number that become virtually impossible to trace and thwart an impending terror attack, would then privacy of the user be more important than national security? This is where the privacy logic of tech giants does not hold good.

Tech Giants have often used evasive maneuvers to avoid following the government laws by stating that they are waiting for their headquarters to instruct them. Now the Government of India has made it extremely clear that all the SSMI (Significant Social Media Intermediaries) like Twitter, Instagram, Facebook and WhatsApp would have to appoint a Chief Compliance Officer, Resident Grievance Officer and Nodal Contact Person. The Government has also made it clear that in case due diligence or compliance mechanism is not followed, then the intermediary status of those social media platforms may be revoked that may result in their immunity veil being taken away resulting in creation of hefty liabilities for various reasons including for hosting third party information.

The likes of Jack Dorseys can surely think of taking positions on issues and play the role of pied pipers if they want. But in such cases, they can’t have the cake and eat them too. If they want to take sides, then their organizations must be disrobed of their immunity of intermediary status. Sovereignty of a nation and public order is more important than dreams of manufactured revolutions going on in the minds of some foreign CEOs. India is no more the subject of East India Company. They should remember that. The tyranny of the unelected cannot be entertained anymore. Everything else is welcome.