The central government asked Facebook and WhatsApp nine questions over their proposed policy changes as it is expected that the data shared over WhatsApp would be tightly integrated with Facebook.
Due to these policy changes many people have switched over to other messaging services. The result being that WhatsApp had to postpone their policy changes from coming into effect.
Justice (retd.) B.N Srikrishna had headed the government-appointed committee to study personal data protection and propose a draft bill for the same.
Speaking on the debate over the new policy of WhatsApp he said that even though the Supreme Court had declared data privacy as a fundamental right there is no legislation that is effectively present for the same. On the topic of monopolies to data, he said that they can be dealt with by the creative interpretation of Competition law or doing the required amendments in it. In case such a deterrent is not there it may lead to the encouragement of data monopolies.
Talking about data collection by the government and the safeguards present in India he said that the Right to privacy although a fundamental right can still be subjected to reasonable restrictions. These can only be put by a competent legislature enacting legislation.
As pointed out in the case of Justice K.S. Puttaswamy v Union of India (2017), there are three conditions given by the Supreme Court that will ensure the constitutional validity of such legislation:
- The law has to be passed by a competent legislature.
- The object in public interest must be declared when such law is enacted.
- A methodology, proportionate to the objective to be achieved and not more than that.
Speaking on the localization of data he said that there is a difference between localization of data by multinational companies and local entities. In the case of the multinationals if the data is across the border and stored on a server the access to it would be subject to the laws of that country whereas in the case of local entities the data is within the country, therefore, is accessible subject to the local laws.
Speaking on the lessons learned from the government demanding unfettered access to data and the safeguards needed for the future he said that all over the world it is the tendency of the executive to accumulate power. An attempt to collect data for combating the pandemic is fine, such a step should not be taken otherwise than through proper legal methods. It should be done as per the law given by the Supreme Court. Any step outside these bounds should be opposed. The danger is that what has been done as a temporary measure for an emergency may turn into a permanent measure. Law needs to have proper safeguards or we would be down that path of Orwellian State.