WhatsApp moves Delhi HC against traceability clause in IT rules, calls it is unconstitutional
Introduction
Faced with a deadline to comply with the Indian government’s new rules for social media intermediaries, which needs them to make provisions for “identification of the first originator of the information”, Facebook-owned messaging platform WhatsApp has moved the Delhi High Court challenging this aspect of the new rules. The petition was filed on May 25, the final date of compliance alleging that the aforesaid clause is violative of a person’s right to privacy as enshrined in the Supreme Court judgment of KS Puttuswamy v. Union of India.
Whatsapp Arguments
The Whatsapp Spokesperson said that “Requiring messaging apps to ‘trace’ chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermines people’s right to privacy,”
He further added that “We have consistently joined civil society and experts around the world in opposing requirements that would violate the privacy of our users. In the meantime, we will also continue to engage with the Government of India on practical solutions aimed at keeping people safe, including responding to valid legal requests for the information available to us,”
WhatsApp argues that “traceability inverts the way law enforcement typically investigates crimes”. “In a typical law enforcement request, a government requests technology companies provide account information about a known individual’s account. With traceability, a government would provide a technology company a piece of content and ask who sent it first,”
The post titled, ‘What is traceability and why does WhatsApp oppose it?’ says: “In order to trace even one message, services would have to trace every message. That’s because there is no way to predict which message a government would want to investigate in the future. In doing so, a government that chooses to mandate traceability is effectively mandating a new form of mass surveillance.”
Government Response
The Indian government said that it respects the “Right of Privacy” and has no intention to violate it when WhatsApp is required to disclose the origin of a particular message.
The statement released by the Ministry of Electronics and IT (MEITY) comes hours after the social messaging app filed a lawsuit in Delhi High Court challenging the government’s new digital rules saying the requirement for the company to provide access to encrypted messages will break privacy protections.
The statement added that “Such requirements are only in case when a particular message is required for prevention, investigation or punishment of serious offences such as sexually explicit content,” furthermore they said that, “The Government of India recognises that ‘Right to Privacy” is a Fundamental right and is committed to ensure the same to its citizens, Such requirements are only in case when a particular message is required for prevention, investigation or punishment of serious offences such as sexually explicit content,” the statement added.
However, it also added that as per all established judicial dictum, “no Fundamental Right, including the Right to Privacy, is absolute and it is subject to reasonable restrictions. The requirements in the Intermediary Guidelines pertaining to the first originator of information are an example of such a reasonable restriction.”
On this issue, IT minister Ravi Shankar Prasad has said, “the Government of India is committed to ensuring the Right of Privacy to all its citizens but at the same time it is also the responsibility of the government to maintain law and order and ensure national security.” He also stated that “none of the measures proposed by India will impact the normal functioning of WhatsApp in any manner whatsoever and for the common users, there will be no impact.”
Conclusion
The new 2021 IT Rules will now at least mandate reasons for such takedowns to be debated, and provided the three-tier grievance redressal mechanism works, it will provide material for the High Courts and Supreme Court to examine them, in the event Government actions are challenged. Intermediaries now have enhanced due diligence and monitoring burdens, and are also expected to continuously educate users on what can and cannot be posted. This will assist in establishing a trend of self-regulation, especially in relation to social media intermediaries, thanks to tools provided by artificial intelligence.
