20 Sep 2017 8:27 AM GMT
Shocked at the menace of blue whale reaching the sleepy hamlet of Vilachery in Tamil Nadu, the Madras High Court has delved into great depths to counter what it called the “lurking dangers in the digital world”, while directing the Centre to use its diplomatic relationship with Russia to block the URLs/links related to Blue Whale game and seek penal action against the culprits on behalf...
Shocked at the menace of blue whale reaching the sleepy hamlet of Vilachery in Tamil Nadu, the Madras High Court has delved into great depths to counter what it called the “lurking dangers in the digital world”, while directing the Centre to use its diplomatic relationship with Russia to block the URLs/links related to Blue Whale game and seek penal action against the culprits on behalf of India.
A bench of Justice KK Sasidharan and Justice GR Swaminathan issued a string of directions to the Centre and also to the government of Tamil Nadu to ensure youth do not fall prey to Blue Whale, a game developed by a psychopath in Russia.
The court had taken up suo motu cognisance of a news report about a 19-year-old B.Com student hanging himself to death at his house in Vilachery on September 1. His suicide note read, “Blue Whale was not a game, but a disaster.”
While dealing with the subject, the bench explored various aspects which opens society to risks such as Blue Whale as it said “it is this current reality (of IT world) and potential dangers that made us look beyond”.
The bench opened its judgment quoting poet PB Shelley: "The desire of the moth for the star, of the night for the morrow, the devotion to something afar from the sphere of our sorrow."
It went on to say, “But the moth does not go to the star. It falls into the flame and dies. Online games tap such tendencies innate in individuals. They challenge the player to move from one level to the next higher level. They are addictive. Mostly, they are a meaningless waste of time, though some are psychologically harmful. But where the finale is fatal, it can no longer be ignored as something private. Blue Whale game is one such. It started in Russia and has since spread worldwide.”
The bench was shocked at how Google India washed its hand off any responsibility when the Ministry of Electronics and Information Technology (MeitY) asked it to unlist/ remove the said game/ apps from relevant platforms like Google Playstore for avoiding further downloads/ circulation in India.
“We read and re-read the aforesaid response of Google India. Google India has virtually washed its hands off. Action will be taken by Google Play Team based in the US if their "Policy" is violated. MeitY had also written to Microsoft India, Facebook India, Yahoo India and other social media service providers requiring them to ensure that the link to the said deadly game is immediately removed from their platforms,” it said.
Threat To National Security
Even though Blue Whale game is no longer downloadable, it is still available. The administrator is able to reach out to potential victims through what is known as "Over the top services" like WhatsApp, Wickr, Silent Circle, osTel, ChatSecure, Signal, ShareIt etc. They can create closed communication/chatting fora which ensure anonymity of the users. The police are left with no clue about the administrator as well as the players.
The court was presented with a possibility that the very same modus operandi can be adopted by anti-national forces and international terrorists. They can identify potential youth for radicalisation from the mainstream platforms like Facebook, Twitter etc. Once identified, the selected people can be taken to closed groups over Telegram or WhatsApp where they can be further groomed and trained and radicalised. Thereafter, specific instruction can be passed on for execution. It was whispered, rather audibly at the bar, that this is already going on. The threat to national security from the net is far more serious than what is apparent now.
The bench referred to how WhatsApp messages, which are end-to-end encrypted, were used to plot the November-2015 Paris attacks or the 2017 Westminster attack.
It referred to apex court decisions in cases like Kamlesh Vasvani Vs Union of India and Sabu Mathew George vs Union of India where the Supreme Court had directed various internet giants to remove child pornography content and advertisements for gender selection, respectively.
“The Government of India cannot be heard to say that agencies will carry on their business operations in the territory of India but would remain outside the reach of its law enforcement. The preambular declaration is that the people of India had solemnly constituted India into a Sovereign Republic. A sovereign has certain attributes, one of which is that those who are within its territorial limits shall abide by its commands,” the court said.
Fundamental Right To Privacy vs Surveillance State
Acknowledging that the Supreme Court has recognised right to privacy as a fundamental right, the Madras High Court noted that it would not be considered a violation if internet service providers are brought within a regulatory framework.
The bench cited the example of a case titled Google Spain vs Agencia Espanola in Spain, where a citizen wanted certain references in internet to be deleted and was asserting what has now come to be known as "Right to be Forgotten".
“When Google resisted, it was ultimately made to comply with the laws of the region by the European Court of Justice. There are several nations in the world which have erected a firewall in the national borders of the information highway. India is a flourishing democracy. We have reiterated that privacy is a fundamental right. There is a robust regulatory framework. The authorities cannot act in an arbitrary manner,” it said.
However, the bench added: “The Supreme Court, while striking down Section 66A of the IT Act, 2000, has upheld the constitutional validity of Section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009. Section 79 of the Act relating to intermediaries was also sustained by reading down Section 79(3)(b) of the Act. The IT (intermediary guide lines) Rules 2011 were also upheld in the same manner by reading down Rule 3(4). Therefore, there can be no apprehension that there will be violation of the privacy rights of the citizens or that there will be a surveillance state if the service providers are brought within the regulatory framework. The service providers cannot abdicate their responsibilities. They cannot also plead that they have no control over the content.”
Make In India- The Ultimate Solution
Shocked at how internet giants claim that they have no control over the content which is regulated by parent company headquartered elsewhere, the bench said, “A mere look at the net neutrality debate that is presently going on would show that the service providers are in a position to have control over the content that passes through their information highway. If the service providers can attempt to control the content for commercial considerations, they can certainly be called upon to exercise their power of control in public interest also. Rather they must be mandated to do so.”
The bench recognised ‘Make in India’ as the ultimate answer to the situation.
“Of course, there are certain long-term solutions. ‘Make in India’ is the ultimate answer. In fact, India developed her own operating system rivaling Microsoft Windows. It was tested and used about a decade back. It was called BOSS (Bharat Operating System Software) designed, coded and developed by the State-owned centre for the development of Advanced Computing (CDAC). None other that the late President, Dr APJ Abdul Kalam, recommended it. But due to lack of marketing, the product did not take off. India continues to be dependent on the software and other systems developed overseas. This compromises the national security also,” it said.
Dr Vasuda Prakash, founder-director of Ms V Excel Educational Trust, Chennai made an argument that the Blue Whale menace, even if countered today, can always make a comeback in any other form like a black dolphin game or a grey horse.
On these lines, the bench said the need was not only to remove this game, but to build emotional resilience in children and motivate them to have a “theme for life”.
“The game is intended to target children who are low on self-esteem and are equally insecure. The concept of feeling connected is on the low in the present-day kids and therefore, children feel a need to connect with the virtual world and thus land themselves in situations like Blue Whale.
“This is because of deep-rooted parental issues like lack of touch and lack of connectivity between parents and children,” it said.
“The screen is a largely addictive factor and addicts everyone across the globe, be it the computer or the mobile or a laptop and a television. Humans are prone to screen addiction. The children, who fall victims, are the ones who are insecure and also stressed,” it said.
The court suggested schools conducting activities to let children have a purpose in life like social work, group therapy by psychologists, counselling and involvement in meaningful, purposeful activities which make a difference to the world. For eg: cleaning the neighbourhood, planting trees etc and forming support groups for helping out children who may be prone to Blue Whale.
The bench directed the Centre to bring all over-the-top services as well as service providers into India’s legal framework obliging them to comply with the laws of India, call upon internet service providers in India to furnish information regarding downloads/ access to suspicious links/ URLs of the game, prior to the removal from their platforms and make websites and their Indian subsidiaries compulsorily amenable to Indian laws.
With regard to Tamil Nadu, the court asked the state to designate IPS officer Dr S Murugan, Joint Director, Department of Vigilance, as the nodal officer to ensure implementation of the order blocking the website and removal of links.
All authorities in the school and higher education department have been told to sensitize students.
Read the Directions Here
A. Directions to the Central Government:-A. Directions to the Central Government:-1.The Central Government is directed to take appropriate steps, as expeditiously as possible to bring all the "Over The Top" services as well as service providers into a legal framework obliging them to comply with the laws of India and to provide the required information to the law enforcing agencies. Methods must to be devised to ensure that those OTTs which could not be brought within such framework are not accessible in India. ii. CERT-In is directed to collect the digital equipments such as smart mobile phones, tablet computers and laptops used by the victims of Blue Whale challenge game for conducting digital forensic analysis so that the source of the game as well as the administrators of the game could be found out.
2.The internet service providers must be directed to take due diligence to remove all the links and hash-tags presently being circulated in the social media platforms such as Facebook, Twitter etc and also in dark net with URLs/links related to Blue Whale game.
3.The internet service providers in India must be called upon to furnish information regarding downloads/access to suspicious links/URLs of the game, prior to the removal from their platforms.
4.The Central Government must seek co-operation and use its diplomatic relationship with Russia to block the URLS/Links related to Blue Whale game and penal action against the culprits on behalf of India.
5.The Technology Companies and Websites follow the Laws of their respective jurisdiction and as such, they are not providing the "Data and Information", in spite of making a request for it by the Law Enforcing Agencies in India on account of violation of Indian Laws. This is evident from the communication dated 22 May, 2017, received by the Director, Cyber Laws and Security Group, Ministry of Electronics and Information Technology, Government of India from Google India Private Limited, that Google service, such as Google play are provided by Google Inc, a company incorporated under and governed by the Laws of United States. The Central Government must address this issue seriously and consider amending the relevant Rules and Regulations applicable to the Indian subsidiaries and websites making it compulsorily amenable to Indian Laws.
B. Directions to the State Government:-1.The Government of Tamil Nadu shall designate forthwith Shri.Dr.S.Murugan, I.P.S., an Expert in Cyber Law, presently functioning as Joint Director, Department of Vigilance and Anti Corruption, Chennai - 16, as the Nodal Officer in terms of Rule 4 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. This would be in addition to his duties as Joint Director, Department of Vigilance and Anti-Corruption.
2.The Nodal Officer must in coordination with the Designated Officer appointed under Rule 3 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 and other authorities must ensure the implementation of the order blocking the website and removal of links. The State Government is directed to provide necessary manpower and resources to the Nodal Officer for carrying out his functions in larger public interest. It is open to the Nodal Officer to take the assistance of other Experts in the field of Cyber Law and preferably Ms.Lavanya, ADSP, who is presently with the C.B.C.I.D., Chennai. iii. The Director General of Police is directed to ensure that the instructions given vide circular bearing C.No.121311/General-1/2017 dated 01.09.2017 are complied with in letter and spirit.
3.The Principal Secretary to Government, School Education Department, the Principal Secretary to Government, Higher Education Department, the Director of School Education and the Director of College Education shall take active steps to ensure that all Educational Institutions in Tamil Nadu sensitize and warn the students as well as the parents not only about this Blue Whale challenge game but also the lurking dangers in the digital world. v. The Government must constitute District and Taluk Level Committee comprising members from Non-Governmental Organization, Psychiatrists, Voluntary Organizations, Educationalists and all other stake-holders to chalk out programmes for giving counselling taking the Educational Institutions as a unit. The volunteers appointed by the Committee must take up the work of counselling to students as a mission. They should earmark dedicated telephone numbers, so as to enable those who are in need of counselling and their parents to approach the volunteers for timely help. vi. The Government must issue advisories periodically to the youth and students in particular underlining the ill effects of this game and the facilities available to come out of this dangerous game. vii. The Superintendent of Police, Madurai Rural shall forthwith transmit the digital equipments seized in connection with the suicide of Vicky @ Vignesh to CERT-In for forensic analysis.
4. Those who are providing links and promoting this dangerous game even after its ban must be prosecuted by invoking the relevant provisions of the Information Technology Act, 2000 and Indian Penal Code. ix. The Press and Media also owe a duty to the Society by reporting the measures taken by the Government and other Agencies for counselling and appeal to the youth not to try this game on any account.
Read the Order Here