On Sunday, 4th April 2021 The Dialogue, a Delhi based Tech Policy think tank, in partnership with Law and Tech Society of National Law School of India, hosted a Virtual Conference on Encryption and Platform Regulation Debate in India wherein the results of the National Essay Competition on Encryption and Platform Regulation were also declared.
The Essay competition spanning over the last seven months, received 156 registrations across legal institutions in India from undergraduates to PhD Scholars. The essay competition was adjudged by Justice A.P. Shah (Former Chief Justice, Delhi High Court), Dr. Menaka Guruswamy (Senior Advocate, Supreme Court), Dr. Joan Barata (Non-Resident Fellow, Stanford Centre for Internet and Society), Mr Rodney D Ryder (Founding Partner, Scriboard) and Ms. Arya Tripathi (Partner, PSA Legal).
The virtual conference received 360 registrations and was graced by the esteemed jury members of the essay competition itself. Explaining the importance of such competitions Dr. Guruswamy noted, “essay competitions are one way of pushing good writing, coupled with good analysis and reasoning. You will rarely have a good lawmaker draft a bad law if he/she can write well. That’s because writing enables you to think of multiple scenarios”
The winners for the theme ‘Critical Appraisal of Right to Privacy in the context of intermediary liability’ were Shreya Jain and Pavitra Naidu, while Niyati Karia and Shalvi Ponwar have been adjudged first runners up. Both these teams were from O.P. Jindal Global University. Nidhi Agarwal from NMIMS, Mumbai has been adjudged the second runners up.
The winner for the theme ‘Situating Encryption and allied rights within the Indian legal framework’ was Devansh Kaushik from NLSIU, Bangalore, while Aadith and Anasuya Nair from Tamil Nadu National Law University were adjudged first runners up. Rajyavardhan Rajavat and Aditya Joshi from Dharmashastra National Law University, Jabalpur have been adjudged second runners up.
Speaking about the IT Rules of 2021, all the panellists voiced their concern around the need for consultations as regulations are being drafted, especially when it pertains to technical issues like traceability and algorithmic bias. Dr. Guruswamy added, “the problem with lack of consultation with commercial intermediaries, is that if you don’t consult you don’t actually know what’s happening out there in terms of the evolution of the tech.”
The panellists discussed how the mandate in the new IT Rules of 2021 will not just impact attorney-client privilege but also the Constitutionally guaranteed freedom of speech, privacy and operation of Indian companies at a global scale.
Dr. Joan Barata explained that the use of AI is not bad per se. Platforms voluntarily use such tools. Nevertheless, proper safeguards should be in place to deal with the limitations, and platforms should not be forced to use AI models, given how many mistakes occur by using such a mechanism.
Ms. Arya Tripathi explained that identifying the first originator of a message may not only be a violation of the right to privacy but the technological changes that have been mandated come at a heavy price. The panellists also discussed how finding and attributing liability on the first originator could itself lead to multiple challenges as the same could implicate innocent users who may be sharing the message to create awareness along with the risk of cyber attackers technically manipulating the ecosystem to frame innocent users. Ms. Tripathi further noted that “The manner and modus through which the intermediary guidelines have been made effective defies the established principles of delegated legislation and hints at overreach.”
Consultation with a wide array of intermediaries and technical experts and the appointment of an independent data protection authority were the two key recommendations from the conference.
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