Published in 4th Estate News on Sep 3, 2020
The use of social media platforms to commit crimes like defamation, bullying, slender and its use as a tool to exploit vulnerabilities, to hack the assets in virtual and physical domains, is not uncommon. The stories of young girls committing suicide because their morphed photos were posted on Facebook, hacking of Twitter handles of famous personalities like Warren Buffett to siphon off money from their bank accounts, posting fake pornographic content on the verified handles of senior government officials to defame them and hacking the officially verified handle of Indian Prime Minister; are only a few instances of misuse of these social media platforms.
A Crime can always take place irrespective of whether the social media platform is secure or not, but what is more appalling is the lackadisical attitude of the social media platform administrators in not co-operating with Law Enforcement Agencies, investigating the crime to bring the culprits to book. Most of these social media platforms like Facebook, Twitter, WhatsApp, Telegram etc are owned by companies who are incorporated in United States of America and claim to be governed by Section 230 of the Communications Decency Act (CDA) of 1996 (a common name for Title V of the Telecommunications Act of 1996), a piece of Internet legislation in the United States, codified at 47 U.S.C. § 230, consequently they have an arrogant attitude toward the requests made by the citizens and Law Enforcement Agencies and try to obstruct administration of justice and investigation by not providing critical information in time.
Recently, it has also been alleged internationally, as well as in India, the biased ideological attitude of some of these social media platforms actively interfering in internal matters of of nations like democratic elections. It is also not known what mechanism these companies deploy to engage the manpower involved in maintaining their operations. Recently, it was found that several employees of Twitter were involved in hacking of important verified handles. The most worrying trend is that these social media platforms are openly taking confrontation with the National Governments, their representatives and even constitutionally elected Committees of Constitutional Establishment like Parliament. To summarise they’ve become ‘State within a State’ and law unto themselves.
There is an urgent need in India to make provisions by issuing an Ordinance followed by enactment of Act for making and implementing provisions to regulate these social media platforms and ensure that justice is delivered to every citizen who becomes a victim of the apathy of these social media platforms. Some of the important provisions which should be incorporated in the proposed Ordinance and law are listed below,
- As cyberspace has been acknowledged as the fourth domain of Warfare after Land, Sea and Air, the foremost requirement for operations of these social media platforms should be to run their Indian operations by incorporating a Company in India over which the jurisdiction and laws of India apply. The Chief Executive Officer of the Indian Company should be an Indian passport holder and ordinarily be a resident in India. By implementing this provision social media platforms would be under jurisdiction of Indian criminal and civil law. This would strategically give India some perceived control over the Cyberspace.
- All the servers related to the Indian user’s data or atleast their mirrors must be kept and installed in India only. The passwords of these clouds spread over several international jurisdictions may be kept in an escrow account.
- License from MeitY must be made compulsory for their operations in India. They should be treated as service providers, under the licensing conditions, who should be bound by the directions of MEITY for regulating their operations in India. The violations of the instructions issued by MEITY in accordance with the terms and conditions of the licence would result in cancellation of the licence to operate as also make them liable for criminal and civil suit.
- Automatad repository of the mobile numbers to which the account was linked must be shared with and maintained by an Agency of Ministry of Home Affairs so that it can be verified with the service provider to help trace the misuse of social media accounts and also find a fake one.
- While creating an account on any of these social media platforms it should be mandatory for the user to verify his or her credentials including mobile number through net banking or a credit card to establish his rightful coordinates, incase of any investigation. Minimum amount of ₹1 or ₹10 may be deducted for a confirmed transaction for establishing the credentials of the user by the Bank. If the bank account is inactive for more than 3 months, the Bank should not process this confirmation request. This suggestion is important because it would take care of several fake handles run by Criminals, Naxals and Anti-National elements thus also preventing the spread of fake news by these suspect handles.
- Provision for heavy financial penalties including cancellation of operations and imprisonment of the officials of the social media platforms should be made, if they don’t comply with the requests of Law Enforcement Agencies for investigation and data requests or request for removal of data by the LEA.
It is the right time that these social media platforms are given the message that they need to abide by the Laws and Jurisdiction of India and stop behaving as Czars operating from Ivory Towers located in foreign land. The Fundamental Rights of Indian citizens, maintenance of public order in Indian society, respect for Indian culture and values and last but not the least security and integrity of our Nation has to be respected, if they have to do business in India. Nation also cannot afford to ignore the vast Empire of The 5th Estate being run by these Social Media Platforms as the Cyberspace has fastly emerged as the fourth domain of Warfare after land, sea and air. The players in the Cyberspace , as a Warfare domain, therefore, need to be treated as either a friend or an enemy according to their ‘prakriti’ and deeds as stipulated by Chanakya.
Sandeep Mittal, IPS is a Postgraduate in Cyber Defence and Computer Forensics and hold Doctorate in Cyber Security. He taught Cyberspace Investigation to functionaries of Criminal Justice Administration. The academic views expressed here are his own and may not reflect the views of Organisations where he works.
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