Introduction:
WhatsApp has been making news for a few months now regarding its privacy policy. It is facing legal issues in Germany and India. These countries have been preventing WhatsApp from taking coercive action. Now WhatsApp is suing the Indian government in an attempt to protect user privacy in India. Moreover, the service might actually be on the right side of this one.
WhatsApp has filed a legal case in Delhi High Court to block new regulations effective from Wednesday. These regulations would otherwise force the chat app company to break privacy protection on its service. It pleads the court to declare that one of the new rules violates privacy rights in the Indian constitution. This is because it requires social media companies to identify the first originator of the information. This has been a demand from government officials.
The new regulations require this within the regard of unmasking people accused of wrongdoing. But this is not possible without breaking end-to-end encryption for all the users.
The new intermediary rules in India:
On February 25, 2021, the Indian Ministry of Electronics and IT and the Ministry of Information and Broadcasting issued new guidelines. Under these guidelines, social media platforms that are classified as “significant social media intermediaries” have several obligations that they need to comply with. The timeline to complete these obligations was three months from the date of notification that is 25th May 2021. Basically, these new rules will be effective from today.
There will be more technicality towards the definition of significant social media intermediaries. But for understanding, think of them as social media platforms with over 5 million users. The definition captures platforms like Facebook Twitter WhatsApp YouTube and others beyond these.
Compliances:
Again, the law is fairly technical, but here’s a summary of the compliances envisaged under the new Rules:
- Removal of immunity from lawsuits for content posted on the platform.
- Shorter timelines to address takedown and assistance requests from government agencies.
- Potential criminal prosecution of the service’s Grievance Officer on failure to timely address such requests.
- Setting up of Indian residents employed within the service/company as:
- Chief Compliance Officer for ensuring compliance with Indian laws.
- Nodal contact person for 24×7 coordination with law enforcement agencies.
- Grievance Officer for abiding with timelines on takedown and assistance requests.
- Allow users to voluntarily verify their identity on such platforms using government-issued identity documents.
- Enable traceability of the originator of messages on their platform and allow the government to make demands for the message content.
- Enable automated tools to identify and take down several types of objectionable content and any information that is exactly identical to the information that was previously removed.
It can be easily noted that some compliances are onerous. Moreover, they are difficult to implement in India without changing the way internet social media and instant messaging works.
Whatsapp’s lawsuits against “traceability”:
The chat application has filed a lawsuit against these rules. But their major focus is on point number 5 mentioned in the list. This point heavily focuses on traceability. The lawsuit cites the 2017 Indian Supreme Court judgment. It says that privacy is a fundamental right and must be preserved at all costs. There can be exceptional situations like legality, necessity, and proportionality.
WhatsApp argues that the law fails all the three tests which start which lack explicit parliamentary backing. Apart from the lawsuit, WhatsApp has also issued an FAQ on traceability. The company argues that traceability requires messaging services to store information. This is done to ascertain the content of people’s messages. This breaks the guarantee of end-to-end encryption that WhatsApp provides.
How traceability will work if the rules will be adhered to:
There has been no effective way to trace one particular message without tracing all the messages. It lacks ways to predict which message the government would want to investigate for the future. According to WhatsApp FAQ, if the government chooses to mandate traceability, it is effectively mandating a new form of mass surveillance.
To work with this rule, the services would have to maintain a huge database of every message sent. It will require the company to add a permanent identity stamp-like fingerprint. This destroys the privacy of personal messages that an individual sends to his friends and family.
What happens next?
The lawsuit information is not completely available currently. But the Delhi High Court will look into the matter. They will allow WhatsApp and the government to present their arguments. Meantime the high court will provide injunctive relief. It will prevent the implementation of compliance until the completion of the lawsuit.
Will social media platforms face a ban in India?
There have been rumours that Facebook, Twitter, Instagram, and WhatsApp will stop working from May 25, 2021. But the rumours were completely baseless. The services will not be banned immediately.