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Government responds to WhatsApp’s lawsuit; asks social media firms to provide details of compliance with IT Rules 2021

WhatsApp had filed a petition in the Delhi High Court on May 25, arguing that the traceability provision in the IT Rules is unconstitutional as it is against people’s fundamental right to privacy and would break end-to-end encryption

Ravi Shankar Prasad

Responding to messaging platform WhatsApp’s lawsuit in the Delhi High Court against the new IT Rules on grounds of violation of user privacy, the Union government called it a “clear act of defiance”, saying it is committed to the right to privacy of citizens but it is not an absolute right and will come with reasonable restrictions.

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“The Government of India is committed to ensure 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. 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,” said Ravi Shankar Prasad, Minister of Electronics and Information Technology.

Stating that the debate of end-to-end encryption was misplaced, Prasad said, “Whether Right to Privacy is ensured through using encryption technology or some other technology is entirely the purview of the social media intermediary. It is WhatsApp’s responsibility to find a technical solution, whether through encryption or otherwise, that both happen.”

In a statement, the Ministry of Electronics and Information Technology (MeitY) also clarified that an order to trace the first originator would be used as a last resort measure “only for the purposes of prevention, investigation, punishment, etc., of inter alia an offence relating to sovereignty, integrity and security of India, public order incitement to an offence relating to rape, sexually explicit material or child sexual abuse material punishable with imprisonment for not less than five years.”

“It is in public interest that who started the mischief leading to such crime must be detected and punished. We cannot deny as to how in cases of mob lynching and riots, etc., repeated WhatsApp messages are circulated and recirculated, whose content are already in public domain. Hence the role of who originated is very important,” read the statement.

“As a significant social media intermediary, WhatsApp seeks a safe harbour protection as per the provisions of the Information Technology Act. However, in a befuddling act, they seek to avoid responsibility and refuse to enact the very steps which permit them a safe harbour provision,” the statement added.

WhatsApp filed its petition in the Delhi High Court on May 25, the last date for compliance with the new rules. In its plea, the Facebook-owned platform argued that the traceability provision is unconstitutional as it is against people’s fundamental right to privacy and would break end-to-end encryption.

According to a report in The Indian Express, a WhatsApp spokesperson said, “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. 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.”

In a post shared by WhatsApp, the platform said ‘Traceability’ would require private messaging services like WhatsApp to keep track of who-said-what and who-shared-what for billions of messages sent every day. “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.”

However, the Ministry questioned WhatsApp’s commitment to user 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 statement read.

Meanwhile, the Ministry wrote to all significant social media platforms on May 26, asking for details of their compliance. "Please confirm and share your response ASAP and preferably today itself," said the note.

While Twitter is yet to comment, Facebook said they would ensure compliance, but it wanted to discuss with the government some "issues which need more engagement". Google has also agreed to comply.

Notified on February 25, the IT Rules came into effect three months later. The guidelines require social media intermediaries to appoint a resident grievance officer, a chief compliance officer and a nodal person of contact for 24x7 coordination with Indian law enforcement agencies.

The rules also mandate social media platforms with more than five million users to enable identification of the first originator of any piece of information which the government feels could jeopardise the sovereignty and integrity of India.

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