Legal Aspects for Technology
Aside from dedicating his heart and soul to Lawpreneurz, Raunaq is an avid TEDx speaker, and has received accolades for his talk 'Shifting Gears when Lord Murphy Strikes'The past decades have seen technology advance at an exponential rate. Its impact has loomed large over virtually every sector and industry, transforming the way in which companies do business and overhauling business operations the world over. This impact hasn’t been limited to the corporate sector either and, if anything, has had an even greater impact on the lives of the public. New modes of communication, new avenues of entertainment, and new means of transportation have all fundamentally changed the way in which we live our lives. And while many of these changes have undoubtedly been for the better, they’ve also raised their fair share of issues – nowhere more so than in the legal domain.
The law is a structured construct built around a core set of principles. Although changes and amendments are a frequent occurrence, they must first pass a rigorous battery of checks and balances to ensure that they ultimately contribute to the betterment of all. As such, any revisions take a substantial amount of time to be implemented. While this solidity of purpose may have held it in good stead in the past, the rapidity with which technology evolves has changes has left the field struggling to keep pace.
These issues is further compounded by the fluidity and ambiguity that surround many technological products – especially when dealing with intangible concepts such as issues of privacy and free speech, and global corporations that cross national borders – distinguishing between matters both legal and ethical becomes a tricky proposition. These new technologies continue to arise on an almost daily basis, and result in an enormous gamut of tangled issues.Key among them are the matters of privacy and how far it can reasonably extend, and the infringement of copyright and intellectual property rights.
Personal Privacy versus Public Protection
In August 2017, the Supreme Court of India issued a landmark judgment declaring the right to privacy a fundamental one protected under the Constitution of India.
According to the one-page order signed by the presiding judges, "The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution."
Although this ruling was the outcome of a challenge on the constitutional validity of the Aadhaar system, the point still stood. The Supreme Court had declared privacy an intrinsic and inalienable right, on par with fundamental rights such as equality and freedom of speech and expression.
Having said that, how does this ruling apply to social media and private messaging platforms? Services such as Facebook, Instagram, and WhatsApp, and even companies such as Apple via their iMessage app, all allow their users to communicate via private message while guaranteeing end-to-end security. As per the ruling above, these messages are the sole preserve of the sender and the receiver, and not subject to scrutiny by any third party.
This right is vigorously upheld by all of these companies, to the extent of being unable to access these messages themselves. But what happens when these private messages pose a threat to the wider public?
This issue has cropped up multiple times in the recent past, both in India and abroad. In October 2019, the Indian government and Facebook clashed in the nation’s Supreme Court over a governmental order to decrypt private messages on Facebook-owned Messenger and WhatsApp for the stated purpose of ensuring national security. Due to the potential for suspected terrorists to use these apps to plot attacks on Indian soil, the government demanded that Facebook share any data pertaining to such threats.
Facebook in turn refused to dilute end-to-end encryption and denied that the onus for decryption fell on them. A similar issue has arisen in the United States of America, when the FBI attempted to overcome Apple’s refusal to decrypt an iPhone belonging to a shooter involved in the 2015 terrorist attack in San Bernardino, California.
The key question in all of these varied instances remains the same – does the right to individual privacy remain inviolable, even when that same right threatens the safety of other individuals? In all of these instances, an answer has yet to be determined. While the Facebook-Indian government case has yet to receive a ruling, the FBI eventually withdrew their case after unlocking the device with the help of a third-party.
Copyright Protection in the Digital Era
Over the last decade, India's shift towards digitisation has advanced in leaps and bounds. In this scenario, the importance of software products has never been more important. Much of this is attributable to the immensity of resources required to create a new piece of technology, from time and expertise to technical and financial resources. As such, these types of software have also become a prime target for software pirates engaging in copyright infringement.
Although legal protections against this behaviour does exist, existing copyright law does offer pirates a loophole. Under these laws, legal protection only extends to the form or expression of an idea and not to the idea itself. As such, vital elements of a programme or software – including its design, structure, and user-interface (UI) – cannot be copyrighted, and are therefore open to be copied. Although the law has taken cognisance of this issue by taking non-literal copying into account (during which it is determined whether a 'substantial similarity' between elements of the software) this solution still requires developers to engage in frequent rounds of litigation and await a subsequent judgment.
Although India's legal system has taken substantial steps to stem the scourge of copyright infringement, the rapid evolution of the domain often outpaces the protections offered by the law. In order to ensure the continued prosperity of this sector, it is vital that lawmakers and regulators invest the time and resources necessary to ensure that the law is equipped to handle the ever-shifting sands of the digital realm.
Having said that, how does this ruling apply to social media and private messaging platforms? Services such as Facebook, Instagram, and WhatsApp, and even companies such as Apple via their iMessage app, all allow their users to communicate via private message while guaranteeing end-to-end security. As per the ruling above, these messages are the sole preserve of the sender and the receiver, and not subject to scrutiny by any third party.
This right is vigorously upheld by all of these companies, to the extent of being unable to access these messages themselves. But what happens when these private messages pose a threat to the wider public?
Although India's legal system has taken substantial steps to stem the scourge of copyright infringement, the rapid evolution of the domain often outpaces the protections offered by the law.
This issue has cropped up multiple times in the recent past, both in India and abroad. In October 2019, the Indian government and Facebook clashed in the nation’s Supreme Court over a governmental order to decrypt private messages on Facebook-owned Messenger and WhatsApp for the stated purpose of ensuring national security. Due to the potential for suspected terrorists to use these apps to plot attacks on Indian soil, the government demanded that Facebook share any data pertaining to such threats.
Facebook in turn refused to dilute end-to-end encryption and denied that the onus for decryption fell on them. A similar issue has arisen in the United States of America, when the FBI attempted to overcome Apple’s refusal to decrypt an iPhone belonging to a shooter involved in the 2015 terrorist attack in San Bernardino, California.
The key question in all of these varied instances remains the same – does the right to individual privacy remain inviolable, even when that same right threatens the safety of other individuals? In all of these instances, an answer has yet to be determined. While the Facebook-Indian government case has yet to receive a ruling, the FBI eventually withdrew their case after unlocking the device with the help of a third-party.
Copyright Protection in the Digital Era
Over the last decade, India's shift towards digitisation has advanced in leaps and bounds. In this scenario, the importance of software products has never been more important. Much of this is attributable to the immensity of resources required to create a new piece of technology, from time and expertise to technical and financial resources. As such, these types of software have also become a prime target for software pirates engaging in copyright infringement.
Although legal protections against this behaviour does exist, existing copyright law does offer pirates a loophole. Under these laws, legal protection only extends to the form or expression of an idea and not to the idea itself. As such, vital elements of a programme or software – including its design, structure, and user-interface (UI) – cannot be copyrighted, and are therefore open to be copied. Although the law has taken cognisance of this issue by taking non-literal copying into account (during which it is determined whether a 'substantial similarity' between elements of the software) this solution still requires developers to engage in frequent rounds of litigation and await a subsequent judgment.
Although India's legal system has taken substantial steps to stem the scourge of copyright infringement, the rapid evolution of the domain often outpaces the protections offered by the law. In order to ensure the continued prosperity of this sector, it is vital that lawmakers and regulators invest the time and resources necessary to ensure that the law is equipped to handle the ever-shifting sands of the digital realm.
