Supreme Court - Daily Orders
In Re: Prajwala Letter Dated 18.2.2015 ... vs .......... on 23 October, 2017
Bench: Madan B. Lokur, Uday Umesh Lalit
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ITEM NO.301 COURT NO.4 SECTION PIL-W
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
SMW (Crl.)No(s).3/2015
IN RE: PRAJWALA LETTER DATED 18.2.2015
VIDEOS OF SEXUAL VIOLENCE AND RECOMMENDATIONS
(With appln.(s) for impleadment)
Date : 23-10-2017 This matter was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE UDAY UMESH LALIT
Ms. N.S. Nappinai, Adv. (A.C.)
For Petitioner(s) Ms. Aparna Bhat, AOR
Mr. Mayank Sapra, Adv.
Ms. Joshita Pai, Adv.
For Respondent(s)
For CBI/MHA Mr. R. Balasubramanian, Adv.
Ms. Gunwant Dara, Adv.
Ms. Sushma Suri, AOR(NP)
Mr. Mukesh Kumar Maroria, AOR(NP)
Yahoo Mr. Samir Ali Khan, AOR
Mr. Sanjay Kumar, Adv.
Mr. Soham Kumar, Adv.
Facebook Ireland Mr. Sidharth Luthra, Sr. Adv.
Ms. Saanjh Purohit, Adv.
Ms. Richa Srivastava, Adv.
Mr. Tejas Chhabra, Adv.
Mr. Nitin Saluja, Adv.
Mr. S. S. Shroff, AOR(NP)
Facebook India Ms. Richa Srivastava, Adv.
Mr. S. S. Shroff, AOR (NP)
Google Mr. Sajan Poovayya, Sr. Adv.
Signature Not Verified
Ms. Ruby Singh Ahuja, Adv.
Mr. Vishal Gehrana, Adv.
Digitally signed by
SANJAY KUMAR
Date: 2017.10.26
13:58:05 IST
Reason: Ms. Tahira Karanjawala, Adv.
Mr. Arvind Chari, Adv.
Mr. Priyadarshi Banerjee, Adv.
Mr. Saransh Kumar, Adv.
Mr. Sharvan Sahny, Adv.
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Mrs. Manik Karanjawala, Adv.
Mr. Avishkar Singhvi, Adv.
for M/s. Karanjawala & Co.
Microsoft Mr. V. Giri, Sr. Adv.
Mr. Divyam Agarwal, AOR
WhatsApp Mr. Kapil Sibal, Sr. Adv.
Mr. Shashank Mishra, Adv.
Mr. Koshy John, Adv.
Mr. Vivek Reddy, Adv.
Mr. Raghav, Adv.
Mr. Ashwin Reddy, Adv.
Mr. Pranav Awasthi, Adv.
Mr. S.S. Shroff, Adv.(NP)
UPON hearing the counsel the Court made the following
O R D E R
On 18th of February, 2015, this Court had received a letter from NGO-Prajwala to the effect that videos of sexual violence were being circulated in abundance.
After hearing learned counsel for the parties, an order was passed on 22nd March, 2017 constituting a Committee to assist and advise this Court on the feasibility of ensuring that videos depicting rape, gang rape and child pornography are not available for circulation, apart from anything else, to protect the identity and reputation of the victims and also because circulation of such videos cannot be in public interest at all.
We had expected the Committee to preferably arrive at a consensus on the possibility of ensuring that objectionable videos pertaining to child pornography, gang rape and rape are not made available on the 3 internet. For some technical reasons, if that was not possible to explain and detail the reasons why it was not possible.
The Committee was constituted under the Chairmanship of Dr. Ajay Kumar, the then Additional Secretary, Ministry of Electronics and Information Technology. The following persons participated in the deliberations of the Committee:
2. Sh. Arvind Kumar, GC, Cyber Laws and e-Security, MeitY.
3. Dr. Sanjay Bahl, DG, Cert-In;
4. Sh. Rakesh Maheshwari, Scientist G, MeitY;
5. Sh. Sunil Pant, Deputy Secretary, MHA;
6. Sh. Chakit Swarup, Product Manager, Digital India, MHA;
7. Ms. Aparna Bhat, Counsel for the Petitioner;
8. Ms. N.S. Nappinai, Amicus Curiae;
9. Sh. Vikram Langeh, Manager Trust & Safety, Facebook;
10. Dr. Jim Hunt, Software Engineer, Facebook;
11. Sh. Michael Yoon, Policy Manager, Safety & Content, Facebook;
12. Dr. Anthony Surleraux, Child Safety, Google;
13. Dr. Ksenia Duxfield Karyakina, Policy, Google;
14. Ms. Gitanjli Duggal, Legal, Google India;
15. Sh. Robin Fernandes, Grievance Officer, Yahoo;
16. Sh. S. Chandrasekhar, Group Director, Microsoft;
17. Dr. Radhakrishnan Srikanth, Group Program Manager, Microsoft;
18. Sh. Balakrishnan Santhanam, Sr Program Manager, Microsoft;
19. Ms. Keyla Maggessy, Law Enforcement Response Manager, WhatsApp;4
20. Ms. Gayle Argon, Legal WhatsApp.
The Committee commenced its proceedings on 5 th April, 2017 and met virtually on day to day basis. The Committee also took the advice of the experts who made presentation before the Committee. The experts are:
1. Ms. Susie Hargreaves, CEO and Mr. Fred Langford, Dy. CEO, Internet Watch Foundation (IWF), UK;
2. Professor Venkatesh Babu, IISc. Bengaluru:
3. Mr. John Shehan, NCMEC, USA;
4. Sh. Atul Kabra, Security Expert, FireEye, Bengaluri;
Certain inputs were also received from various other experts being:
1. Dr. Hany Farid, Professor & Chair, Computer Science, Dartmouth College, USA.
2. Dr. Mayank Vatsa, Mayank Vatsa, PhD, Adjunct Associate Professor, West Virginia, USA.
3. Dr. CV Jawqaqhar, Associate Professor, IIIT, Delhi.
4. Prof Dr. Anderson Rocha, Associate Dean, Institute of Computing, UNVIERSITY OF CAMPINAS, SP – BRAZIL.
Presentations and papers were also discussed by the Committee and the following presentations and submissions were made:
51. Presentation by Ms. Aparna Bhat, Advocate for Petitioner/Committee.
2. Presentation by Ms. N.S. Nappinai, Amicus Curiae/Committee Member.
3. Submission by Facebook representatives.
4. Presentation and Submission by Google representatives.
5. Presentation and Submission by Microsoft representatives.
6. Submission by Yahoo representative.
7. Combined industry submission of Google, Yahoo, Microsoft and Yahoo.
8. Presentation by Ministry of Home Affairs representative.
9. Written submission by WhatsApp.
10. Oral Presentation of NCMEC, USA and formal response to written queries.
11. Submission by Internet Watch Foundation (IWF), UK.
12. Presentation of Internet Watch Foundation (IWF), UK.
13. Presentation of Mr. Atul Kabra.
The submissions of learned senior counsel for WhatsApp Inc. were taken into consideration as well as those of the representative of WhatsApp who assisted the Committee. The following persons represented WhatsApp 6 Inc.:
1. Mr. Matt Jones, Software Engineer;
2. Ms. Keyla Maggessy, Law Enforcement Response Management:
3. Mr. Christian Dowell, Associate General Counsel.
Two members from WhatsApp Inc., viz., Ms. Keyla Maggessy and Ms. Gayle Argon were also co-opted in the Committee.
After a full discussion, a comprehensive report has been submitted to this Court by the Committee in two volumes. The second volume contains the presentations made.
We have gone through the contents of the first volume which deals with various issues that had arisen before the Committee.
All the parties before the Committee agreed on certain recommendations based on proposals made during the deliberations.
Part I of Chapter 7 of first volume of the Report contains the proposals in which the Committee was able to arrive at a consensus while Part II consists of the proposals in which the Committee was not able to arrive at a consensus.
We have been taken through the proposals as well as the recommendations made by the Committee on which there was a consensus.
7We may note that Proposal No.9 was actually dropped by the Committee. In other words, there are 11 proposals on which there is agreement between the members of the Committee and one proposal which pertained to WhatsApp Inc. being Proposal No.18 which has been accepted while Proposal No.19 pertaining to WhatsApp Inc. was dropped.
The proposals and the recommendations made on which there is consensus read as follows:
Proposal Recommendations
1. a) The search engines expand Government of India the list of key words may work with the which may possibly be represented companies used by a user to search as well as civil for CP content society organizations to suggest expansion of the list of key words for showing CP warning ads/Public service message on search.
b) These key words should The same may be also be in Indian gradually expanded to languages and vernacular other Indian search. languages where applicable.
c) These key words should be For RGR, the expanded to cover RGR Government of India content. may work with the represented companies as well as civil society organisations to suggest the list of key words for RGR warning ads/Public service message.
2. Creating an administrative mechanism for reporting and 8 maintenance of data in India:
a) Either within the CBI, or The Committee agrees under the aegis of the that there is a need MHA, a cell must be set to create a Central up to deal with these Reporting Mechanism crimes; (India's hotline portal), as has been done in other countries, like in the U.S. with NCMEC.
Further there is a need to strengthen law enforcement in this area. Any person/organization should be able to report any CP and RGR content in India with ease with provision for anonymous reporting. This portal may go for INHOPE membership, as an Indian Hotline.
b) A hash bank for RGR The Committee also content be created (under agreed that there is the charge and control of a need to develop a Ministry of Home Affairs, centralised agency to GoI or through maintain and verify authorities or NGOs the hashes of all authorized by it); known CP and RGR imagery.
c) GoI to formulate specific Government may look parameters for into these for identifying RGR content appropriate action to ensure expeditiously.
expeditious
identification and
removal;
d) The hashes so generated must be under the custody of the centralized cell as stated hereinabove who will steps to prosecute, as per the law;
9e) A reporting mechanism must be created at a Central level, preferably with the CBI (in view of their role and special access) to also receive information of any CP/RGR content being circulated in the social media or any other platform over the internet;
f) The cell would regularly engage with represented Companies and the NCMEC for updation of technology, technical support etc.
g) Technology similar to Project Arachind crawler technology be availed of, for identifying India – based CP and also to adapt the same for identifying RGR content online;
h) Content hosting platforms (CHPs), Search Engines and GoI to work together in formulating process for proactively verifying, identifying and initiating take down of all CP/RGR content;
3. Project CCPWC being a general project to alleviate crimes against women and children, a special focus sub-project to be created within the same foe eliminating CP\RGR to undertake the following:
a) The Online Portal Government may take proposed to provide for action, as anonymous reporting of appropriate identified CP/RGR; expeditiously.10
b) A separate hotline to be established for reporting (with the option for caller to remain anonymous) of identified CP/RGR content;
c) GoI to identify and
authorize specific
authority/entity for
receiving Complaints of
CP/RGR online and for
initiating action thereon within specified timelines; Such authority to have immunity and permission to verify CP/RGR content and to initiate take downs:
authority to also have specified processes for immediately intimating respective police stations for registration of FIR and for initiation of prosecutions;
d) A team to be set up for immediately verifying such tips and to issue directions to the service providers/Intermediaries for immediate removal of such identified content;
e) Government of India
team/authority to also
immediately send
communications to
concerned police stations for registration of FIR and initiation of prosecutions. In view of the CBIs willingness to take this responsibility it is recommended that matter be handled by CBI and not by local police.
f) Government of India to
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create tipper list of
NGOs. Tips from such
sources to be acted upon
immediately by GoI
authority for take down
and initiation of
prosecution without
delay;
4. Creation of
infrastructure
/Training/Awareness
building
a) Government of India to Internet companies
form regulations for should provide
reporting of identified technical support and
CP/RGR Imagery online. assist in capacity
building to the
relevant agencies in
India including law
enforcement and NGOs
through a series of
trainings on online
crime investigations,
and trainings on
using relevant
Internet tools.
b) Government of India to Internet companies
ensure that Search should consider
Engines other than those providing support to
already implementing URL Indian NGOs to help
blocks for identified bring awareness of
CP/RGR content to these issues.
initiate similar
processes.
c) Government of India or Government of India
its designated may also conduct
authority/NGOs to be regular training
extended programme as well as
permission/immunity for relevant Government
human intervention to training
identify CP/RGR content; infrastructure to
have the latest
technology on the
subject matter.
d) Government of India to Government of India allocate funds for may also partner with 12 training, verification, civil society continuous monitoring and organistaions, review of personnel research institutes involved in such human to conduct programme intervention process for as mentioned in c) identifying CP/RGR above. Premier content, in line with reserch institutes those adapted by like IISc must be NCMEC/IWF; encourages and supported to have dedicated research programme to undertake these studies.
e) GoI/CHPs/Search Engines
to involve in creation of
awareness amongst users
and sensitization
programs and capacity
building initiatives for judiciary, prosecutors and law enforcement authorities, to mitigate the menace of CP/RGR dissemination;
f) GoI to set up processes for expeditious initiation of prosecution against users for identified CP/RGR content reported by CHPs;
5. The solution lies in The members of the proactively identifying Committee were of the rogue sites by an opinion that this independent agency which could be a process can identify sites that that could be contains CP and RGR considered for content and blocking suitable these sites. To prevent implementation in the circulation of India.
subject imagery, Government can block any additional sites/applications if they do not remove such contents of their own.
MHA/designated LEA can be empowered to directly order Indian ISPs through 13 DoT.
6. The Government, through The Committee agreed an appropriate agency that this should be setup a VPN to receive looked into the NCMEC reports for expeditiously.
uploading of CP from India. As conveyed by NCMEC, there were more than one hundred thousand reports belonging to India. Law enforcement agencies should initiate legal action against uploaders.
7. Removal of known CP/RGR The Committee agreed imagery: When imagery is to the said proposal.
detected as CP/RGR, in
addition to preventing
subsequent uploads,
content hosting platforms (CHP) voluntarily identify, remove and prevent distribution of previously existing content on their platforms.
8. There is need for greater The Committee thrust and emphasis on recognized the research & development of technologies Artificial Intelligence developed by (AI)/Deep Learning represented companies (DL)/Machine Learning including PhotoDNA, (ML) based techniques for Video hashing and identifying CP/RGR other techniques for content at the stage of Imagery. However uploading to enable real Committee also time filtering. Some recognizes the need specific suggestion in for much greater this regard may include collaborative work in as follows: the subject area amongst all
a) Traditional DL/ML stakeholders.
techniques, including
feature engineering based The Committee also
techniques and other feels that video
Image processing hashing technique
techniques to be should also mature as
developed for identifying has been done for
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CP/RGR content at the hashing techniques
stage of uploading. for images.
Represented companies
b) CHPs to review existing should further
architecture to screen/ voluntarily
verify uploads for CP/RGR collaborate with
content using such NCMEC to establish a
AI/DL/ML tools after shared database of CP
suitable technologies are video hashes similar developed. to the image hashes database that is
c) AI/DL/ML tools to be already used by the tested real time (i.e., industry. upon each upload).
d) Research into above The committee
alternatives to be suggested that
initiated in a time bound suitable research be
manner. initiated for
further development
e) CHPs to consider using of technologies for
NCMEC for creating deep identifying CP/RGR
learning/machine learning imagery.
tools, subject to
applicable laws, for CP
(to avail of the huge
data sets repository of
NCMEC).
f) Government of India,
along with CHPs to enage
services of suitable
experts for developing
deep learning/Machine
learning tools for
identifying RGR content.
9. User Authentication: The Committee decided Create a mechanism where to drop this proposal users who seek to upload by consensus.
an image/video, falling
within the subject
content, using the
pre-identified key words, are put to a more rigorous verification process which would have them believe that they would be traced.
1510 Content removal The represented processes/ URL companies stated that de-indexing process for they are continuously identified RGR imagery working on improving should be as expeditious processes for review as removal of CP Imagery. of content including RGR that is reported to them. The Committee noted the same.
11 Content hosting The represented platforms, social media companies stated that platforms and search they are continuously engines will provide working on improving links for reporting processes for CP/RGR imagery, as a reporting content specific category and the including CP and RGR same to be more that violates their prominently displayed on policies or their pages. applicable laws. The Committee noted the same.
12 a) Create a mechanism to The represented ensure that when CP companies are already imagery is identified, taking action in this the CHPs shall preserve regard. The Committee and retain such agrees to Part(a) of information of the proposal.
uploader including the
identified content to
assist law enforcement;
18 WhatsApp should make There was consensus
further improvement in in the Committee. The
their reporting process Committee recommends
which would enable easier that these efforts be
reporting of contents in taken up at the
the App while maintaining earlies.
the integrity of the
contents and metadata
available on phone at the
time of reporting
19 Compute the PhotoDNA has, The Committee agreed
VideoHash at WhatsApp not to pursue this Client on Mobile Handset proposal.
level, and transmit then to central WhatsApp server for matching with 16 CP/RGR Hashes database.
We expect the parties including the Government of India to abide by the recommendations on which there is consensus and to try and implement them at the earliest.
We make it clear that any information that is based on or is pursuant to the proposals and recommendations to the Government of India will be kept confidential so as not to reveal the technology used by the participating service providers.
The Government of India will prepare a status report on implementation of the recommendations and place it before us in a sealed cover before the next date of hearing.
On the next date of hearing, we will deal with the proposals on which there is no consensus.
List the matter on 11th December, 2017 at 2.00 p.m. It is made clear that on the next date of hearing also the proceedings will be held in-camera.
(SANJAY KUMAR-I) (KAILASH CHANDER)
AR-CUM-PS COURT MASTER