new rules for social media, which came into effect on Wednesday, mandates instant messaging apps such as WhatsApp to trace the origin of a message, if required by the authorities by law.
The Facebook-owned WhatsApp, which had consistently opposed diluting encryption of its platform,
has taken the government to court, saying that the new rules violate the right to privacy of Indian users, and called for the intermediary rules to be declared unconstitutional.
ET looks at the government rules for WhatsApp and the app’s arguments in this standoff
- It infringes upon the fundamental right to privacy without satisfying the three-part test set forth by the Supreme Court of legality, necessity and proportionality.
- It violates the fundamental right to freedom of speech and expression.
- The requirement to enable identification of the first originator of the information is ultra vires its parent statutory provision, Section 79 of the Information Technology Act, 2000.
The American company has outlined how its platform is used for private conversations, including by healthcare professionals, government officials, law enforcement and journalists on the basis of the privacy it offers.
Requiring intermediaries like WhatsApp to enable the identification of the first originator of information in India on its platform undermines the privacy and security provided by end-to-end encryption.
There is no way to predict which message will be the subject of such a tracing order. Hence, the company will have to build the ability to identify the first originator for every message sent in India forever.
The intermediary guidelines force WhatsApp to break its underlying principle of end-to-end encryption.
WhatsApp defines end-to-end encryption as communications that remain encrypted from a device controlled by the sender to one controlled by the recipient, where no third parties, not even WhatsApp or parent company Facebook, can access the content in between.
Traceability is incompatible with end-to-end encryption, and this obligation undermines the use of encryption technology.
It said that it is not aware of any country that requires intermediaries to enable the identification of the first originator of information on end-to-end encrypted messaging services, even if it means fundamentally changing their platforms to do so.
Mandating companies to store additional data for every message set in India on its platform is contrary to data minimisation principles. It does not prescribe a timeline forcing WhatsApp to store this additional data even years after the message was sent.
Nothing in the IT Act suggests that Parliament ever intended to empower respondents to require significant social media intermediaries (SSMIs) to enable the identification of the first originator of information in India.
WhatsApp in India: Over 400 million WhatsApp users in India. Approximately 90% of the messages sent on WhatsApp are from one person to another, and the majority of groups have fewer than ten people.
The law: The Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021, were notified by the Centre on Feb. 25, 2021.