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Encryption 4 June 2020

Making Intermediaries Liable for Encrypted Content Breaks Trust and Security

Christine Runnegar
By Christine RunnegarSenior Director, Internet Trust

In December 2018, the Indian Ministry of Electronics & Information Technology (MeitY) proposed a significant change to its intermediary rules. The draft Information Technology  [Intermediaries Guidelines (Amendment) Rules] 2018 seeks to tie tech platforms’ (e.g., social media) protections from liability to an obligation to monitor and filter their users’ content. One of the proposed obligations is to ensure the traceability of messages, even if a service is end-to-end encrypted.

India is just one of many countries around the world experimenting with the idea that Internet intermediaries – specifically social media companies, like Facebook and Twitter – should no longer have immunity from liability for the content shared by their users. Other examples include the U.S. Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 (the EARN IT Act), and the recent U.S. Executive Order on Preventing Online Censorship.

The motivation for changing the status quo varies, from wanting traceability of messages to counter the spread of disinformation or CSEM, to stopping objectionable content from being spread on social media, to preventing political messages from being labeled (e.g., as “misleading information”). Similarly, the approaches being considered to achieve this vary, ranging from outright removal of immunity, to conditional immunity (i.e., earned immunity), to a positive “duty of care.” But, no matter the motivation or the approach, the consequences for the future of the Internet and its security remain the same.

Make no mistake, proposals to change intermediary liability to force content monitoring or traceability on end-to-end encrypted services will undermine security on the Internet. Which is why we’ve produced a fact sheet, Intermediaries and Encryption, to explain why pressuring intermediaries to weaken security through liability is harmful – and counterproductive.

Trump’s Social Media Executive Order: Legal, Ethical, Smart?
In the wake of the United States Executive Order on Preventing Online Censorship, the Internet Society will host a virtual event focused on the broader issue of intermediary liability. Join experts as they discuss what it means for the future of speech and platforms online. Register for the event, which takes place Tuesday, June 9th at 1400 UTC!

We must resist approaches that require service providers to override people’s ability to secure their information and interactions. To do so places individuals and organizations at greater risk – with no guarantee of achieving the intended outcome.

It’s especially important now that we help keep people, infrastructure, and countries secure online. And we must protect the Internet as a global vehicle for innovation, education, and social and economic progress. We can do that with strong encryption policies and practices.

Read our fact sheet, Intermediaries and Encryption, and learn more about the unintended consequences that intermediary liability reform could have on the security of the Internet.

To learn more about the ways encryption is being undermined, read our other fact sheets.

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Disclaimer: Viewpoints expressed in this post are those of the author and may or may not reflect official Internet Society positions.

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