The government of India has hit back with a detailed statement after WhatsApp moved the Delhi High Court over “traceability” of messages. WhatsApp claims that this requirement in the new IT rule is “unconstitutional”, breaches basic privacy of citizens and may even lead to “mass surveillance”.
In February this year, the government notified the ‘Intermediary Guidelines and Digital Media Ethics Code Rules 2021’ for social media companies operating in the country and gave them three months to follow. While the guidelines are detailed and have a long list of compliance requirements that mandates greater accountability from social media companies towards misuse and abuse of their platforms, there is one particular clause that has made WhatsApp upset.
As per the new IT rules, “Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information that is required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years.”
Also, the “Intermediary shall not be required to disclose the contents of any message or any other information to the first originator.”
WhatsApp claims that adding a technology to trace the source of a message on WhatsApp would primarily break end-to-end encryption and that the company will have to read and save every personal message exchanged between users because “there is no way to predict which message a government would want to investigate in the future.”
Government responds to WhatsApp
The Ministry of Electronics & IT responded to the allegation by stating that the government of India “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 IT ministry also highlighted, “after October 2018, no specific objection has been made by WhatsApp to the Government of India in writing relating to the requirement to trace the first originator in relation to serious offences. They have generally sought time to extend the time for enforcement of guidelines but did not make any formal reference that traceability is not possible.”
“WhatsApp’s challenge (lawsuit), at the very last moment, and despite having sufficient time and opportunity available during consultation process and after the rules were enacted, to the Intermediary Guidelines is an unfortunate attempt to prevent the same from coming into effect,” the ministry said.
In February this year, the government notified the ‘Intermediary Guidelines and Digital Media Ethics Code Rules 2021’ for social media companies operating in the country and gave them three months to follow. While the guidelines are detailed and have a long list of compliance requirements that mandates greater accountability from social media companies towards misuse and abuse of their platforms, there is one particular clause that has made WhatsApp upset.
As per the new IT rules, “Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information that is required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years.”
Also, the “Intermediary shall not be required to disclose the contents of any message or any other information to the first originator.”
WhatsApp claims that adding a technology to trace the source of a message on WhatsApp would primarily break end-to-end encryption and that the company will have to read and save every personal message exchanged between users because “there is no way to predict which message a government would want to investigate in the future.”
Government responds to WhatsApp
The Ministry of Electronics & IT responded to the allegation by stating that the government of India “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 IT ministry also highlighted, “after October 2018, no specific objection has been made by WhatsApp to the Government of India in writing relating to the requirement to trace the first originator in relation to serious offences. They have generally sought time to extend the time for enforcement of guidelines but did not make any formal reference that traceability is not possible.”
“WhatsApp’s challenge (lawsuit), at the very last moment, and despite having sufficient time and opportunity available during consultation process and after the rules were enacted, to the Intermediary Guidelines is an unfortunate attempt to prevent the same from coming into effect,” the ministry said.
India is not the first country to enact such rules
The government in its statement said that India alone is not enacting these rules. “In July 2019, the governments of the United Kingdom, United States, Australia, New Zealand and Canada issued a communique, concluding that: “tech companies should include mechanisms in the design of their encrypted products and services whereby governments, acting with appropriate legal authority, can gain access to data in a readable and usable format.”
“Brazilian law enforcement is looking for WhatsApp to provide suspects’ IP addresses, customer information, geo-location data and physical messages.”
The government further claimed that “What India is asking for is significantly much less than what some of the other countries have demanded.”
WhatsApp is contradicting its stance on privacy by sharing data with Facebook
The IT ministry also highlighted WhatsApp’s contradicting stance over privacy. “At one end, WhatsApp seeks to mandate a privacy policy wherein it will share the data of all its users with its parent company, Facebook, for marketing and advertising purposes. On the other hand, WhatsApp makes every effort to refuse the enactment of the Intermediary Guidelines which are necessary to uphold law and order and curb the menace of fake news,” the government said.
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