The latest legal battle on privacy and data between the government and the messaging platform WhatsApp reached Delhi High Court earlier last week. At the heart of this case is the Right to Privacy and it could prove to be an important test of its application in India.
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021
Government of India passed the above changes to the IT Act in February this year. Rule 4(2) of the new IT Rules, which were published on 25 February, requires WhatsApp to enable tracing of the originator of information, if required by a court or a competent authority, under Section 69 of the Information Technology Act, for certain offences.
Section 69Â of the Information Technology Act 2000Â empowers the central government, the state government or its authorised officers to direct interception or monitoring or decryption of any information through any computer source.
The Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, have been issued under this provision to regulate such orders.
WhatsApp Petition
WhatsApp, owned by Facebook Inc. filed a petition challenging Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. End-to-end encryption, which is offered by WhatsApp at present, refers to a system of communication where only the communicating users can read the messages. The government has been challenged on the following three grounds:
- The rule violates the fundamental rights to privacy and freedom of speech and expression, guaranteed under Articles 21 and 19 of the Constitution, of the more than 400 million WhatsApp users in India.
- The scope of the rule is beyond the scope of the Information Technology Act, by asking WhatsApp to fundamentally alter its platform, forcing it to store data for years in the absence of a time limit.
- The rule violates Article 14 of the Constitution, calling it manifestly arbitrary.
WhatsApp has also defended its end-to-end encryption, because it prevents crimes like hacking and identity theft. It has submitted that this protects doctor-client privilege, attorney-client privilege and private conversations on sensitive issues like gender, religion and sexuality.
Government Stand
The government has argued that the rule is necessary to prevent misuse of social media and curb fake news. All authorisation orders issued by the government under Section 69(1) must be reasoned and written. Furthermore, they are scrutinised, at least once every two months, by a review committee set up under the Indian Telegraph Rules, 1951, which comprises of government secretaries in the Centre or the state in question.
It has been assured by the government that ordinary users of WhatsApp have nothing to fear. However the government says that it is also the responsibility of the government to maintain law and order and ensure national security. It also brought the need to check spread of fake news
However it is seen that the information gathered by government agencies is often neither disclosed as required nor made available through RTI.
What does breaking end-to-end encryption entail
It would require the platform to “build a mechanism that would permit tracing of every communication sent in India on its messaging service, including those who are using the service lawfully, as there is no way to predict which message will be the subject of such an order seeking first originator information.
This will make the entire architecture susceptible to attack not just from the government but also from rogue actors. So the privacy concern arises from potential government overreach as well as threat from rogue actors.
Previous legal challenges on traceability pending in SC
The Madras High Court had tried looking into the possibility of tracing WhatsApp messages for improving coordination between law enforcement agencies and social media companies, back in 2019.
The Supreme Court transferred this PIL to itself in October 2019, before the Madras High Court could decide the issue. However, WhatsApp’s plea in the Delhi High Court does not mention the pendency of this plea in the top court.