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The philosophy of Prof. Lawrence Lessing regarding the control of internet through its code and ‘the declaration of independence of cyberspace’ by John Perry Barlaw are in interlocked stage. The movement of the governance of internet is slowly and slowly moving towards regulations by the state due to the continuously rising threats of Cyber Terrorism, Ransomware etc which has become serious concern to the society. The state in its endeavour to control the internet has come with various technical approaches recently in debate such as net neutrality, encryption policy, backdoor in an encryption etc. However, these find little acceptance because of virtual, complex and transnational nature of the internet and conflicting interest of freedom of speech in the society.

The recent attempt by the J&K Government to regulate WhatsApp group is the outcome underlying the philosophy given by Prof. Jack Goldsmith in his functionally equivalent approach in his one of the most influential article ‘Against Cyberanarchy’ which treats cyber space identical to the physical space. The said approach has lost further significance now, particularly upon emergence of Virtualization, Cloud Computing and Encryption.

Whether the endeavour of J&K Government to regulate WhatsApp communication would have any significance, can it be enforced, make any sense interms of virtual world or an another frivolous attempt to control the net? It’s not a dispute that rumour mongering is a serious concern which is being used as an incitement to violence by the anti national elements, terrorist organizations and more particularly in the state like J&K. The circulation of fake news on the Facebook, Newspapers, WhatsApp Groups have become rampant resulting into outbreak of violence  resulting into death of peoples, damage of property and disturbance of normal life in the J&K. The government was forced to resolve to the blocking of mobile internet to control the situation.  

The J&K Government issued the circular making it mandatory the registration of WhatsApp group admin in two different communication that went out on Monday asking WhatsApp Group Admins of "social media news agencies" and "WahtsApp news groups" and they would be liable for the post on their groups & for any irresponsible remarks/deals leading to untoward incidents will be dealt under law. It also forbid government employees who are part of these groups from "making comments/ remarks" about the policies and decisions of the government.

Such order are ineffective as the WhatsApp communication has end to end encryption and the investigation agencies did not have the key to decrypt the data and as such the content of the communication cannot be snooped by the investigation agency and further, once the group is deleted, it is not possible even to find out whether the user was a administrator or simply a member of the group. Further, it did not provide any means how to deal with the WhatsApp group having multiple administrators or where upon leaving of administrator, the group automatically assigned another member as an administrator.

The order, even if implemented, is meaningless as there are number of options to create groups, share information such as FB Messenger, WeChat etc. Further, as evident in the existing cases involving such communications, the collection of evidence, identifying and prosecuting the offenders is a daunting task and did not have any deterrent impact. The absence of any provision justifying the prosecution of the violators/offenders make it a toothless and ineffective measure existing only on papers.

Further, the order is the blatant violation of the freedom of speech and expressions as it not only plans to "look at" conversations among citizens on WhatsApp but encourage citizens to spy on each other which is in conflict with the philosophy underlying such groups where the likeminded people joins to share their opinion and as such order is bound to fail. It is violating of constitutional framework that allows freedom of speech and expression, ineffective being without inbuilt check-in and disproportionate measure which cannot be countenanced as a ‘reasonable restriction’ on freedom of expression and the right to seek and receive information, which is an integral part of the freedom of expression.

The rumour mongering starts rapidly, gains momentum and take alarming proposition and ultimately forcing the government to block the internet if it effects the public order as one of the requirement under the Section 69 of the IT Act. However, until it reached to a alarming proposition disturbing the public order, such fake news does not attract substantially any provision of law to block it especially with the Section 66A being deleted from the IT Act by the Supreme Court. As such, the investigation agencies are handicapped to detect and prevent such take news at the initial stage. Thus, in absence of any provision of law justifying such orders, it lacks the legislature sanction and likely to be struck down.

The need is to strike a balance between the freedom of internet as envisaged by John Perry Barlaw in his theory of independence of freedom of cyberspace and regulation of the internet in meeting the challenges in the larger interest of the societies such as public order, terrorism, security of economic, banking and state itself. The recent complex crime such as ransomware’s which were used to encrypt the data of hospital, police stations and other prominent organizations jeopardizing the important organs of the society, have become tools of cyber war having no remedy with any state in the world justify some regulatory measures to be put in place in the larger interest in the society.  

Neeraj Aarora

CISSP, CISA, CFCE, FCMA, CFE