By Udbhav Tiwari Last week, in a sudden move that will have disastrous consequences for the open internet, the Indian government notified a new regime for intermediary liability and digital media regulation. Intermediary liability (or “safe harbor”) protections have been fundamental to growth and innovation on the internet as an open and secure medium of communication and commerce. By expanding the “due diligence” obligations that intermediaries will have to follow to avail safe harbor, these rules will harm end to end encryption, substantially increase surveillance, promote automated filtering and prompt a fragmentation of the internet that would harm users while failing to empower Indians. While many of the most onerous provisions only apply to “significant social media intermediaries” (a new classification scheme), the ripple effects of these provisions will have a devastating impact on freedom of expression, privacy and security. Consequences for an open internet As we explain below, the current rules are not fit-for-purpose and will have a series of unintended consequences on the health of the internet as a whole: Traceability of Encrypted Content: Under the new rules, law enforcement agencies can demand that companies trace the ‘first originator’ of any message. Many popular services today deploy end-to-end encryption and do not store source information so as to enhance the security of their systems and the privacy they guarantee users. When the first originator is from outside India, the significant intermediary must identify the first originator within the country, making an already impossible task more difficult. This would…
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