WhatsApp has filed a lawsuit against the Indian government over a ‘traceability’ clause in the new Intermediary Rules 2021, which were notified in February this year. The rules which impact social media intermediaries such as Facebook, WhatsApp, Twitter, and others include a clause wherein companies could be forced to identify the originator of a message or post.
WhatsApp has argued that the clause is ‘unconstitutional’ and violates the
right to privacy. The Indian government in response has called WhatsApp’s act as a one of defiance,
and also pointed out that while they respect the right to privacy, it will come
with reasonable restrictions.
WhatsApp’s case against IT
rules
As reported by indianexpress.com, WhatsApp
has said that the new social media rules are unconstitutional and filed the
case on May 25, incidentally it was also the last day for companies to comply
with the new rules. The Facebook-owned messaging app is invoking the 2017 Justice K S Puttaswamy vs Union
Of India judgment in support of its arguments.
WhatsApp wants the court to
ensure the clause does not come into force, and prevent criminal liability to
its employees for non compliance.
Video player from: YouTube (Privacy Policy, Terms)
Traceability means
End-to-End encryption won’t work
In a detailed blog post, WhatsApp
has also explained that traceability will not work, arguing that breaking
end-to-end encryption (E2E) would weaken user privacy on the app and stifle
free speech and freedom of expression. E2E encryption is turned by default on
WhatsApp for all messages.
Further, WhatsApp will have to
re-engineer the app just for India, which won’t happen. If WhatsApp had to
comply with the rules, it would have to create a version of the app that
supports traceability and doesn’t have E2E encryption.
WhatsApp said in its blog that
while it supports “reasonable and proportionate regulations”, it cannot stand
for “eroding privacy for everyone, violating human rights, and putting innocent
people at risk.”
Traceability means a lot of
data collection
WhatsApp in its blog post makes
it clear that in order to trace the originator of any message, it will have to
keep a log of all messages. Currently, WhatsApp cannot read a user’s message
given the E2E encryption.
It says tracing even one
message means tracing every single message on the platform and they will have
to add some sort of “permanent identity stamp” or effectively ‘fingerprint’
each message. It says that this will be the equivalent of a mass surveillance
program.
Traceability is not
foolproof
WhatsApp and internet experts have made it clear
that traceability is not foolproof. Further, when users are
forwarding, copying messages, finding the originator becomes difficult.
WhatsApp says it might have to “turn over the names of people who shared
something even if they did not create it, shared it out of concern, or sent it
to check its accuracy,” which would lead to human rights violations as innocent
people could end up getting caught in investigations or going to jail.
Further, even if messages are
fingerprinted on WhatsApp, these techniques are not foolproof and can be easily
impersonated. WhatsApp also says that “traceability” goes against the basic
principles of how law enforcement and investigations work.
Government response to
WhatsApp’s lawsuit
The Ministry of Electronics and
Information Technology (MeITY)has called WhatsApp’s refusal to comply with the
new IT rules as a “clear act of defiance.” Further,
it has said that the right to privacy will come with reasonable restrictions,
adding that social media companies will only have to give the originator of a
message in select cases and based on an order from a competent court.
The government also questioned
WhatsApp’s own commitment to user privacy pointing out that the company plans
to “share the data of all its users with its parent company, Facebook, for
marketing and advertising purposes.”
IT rules on tracing
originator
According to the government,
tracing the first originator is only under select circumstances and they don’t
want to track all messages.
Under Rule 4(2) of the
guidelines, a social media intermediary could be required to trace an
originator of a message or tweet or post “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.”
Three red ticks on WhatsApp
calls, messages?
There is a fake WhatsApp
message going viral claiming that three red ticks will appear on messages
indicating that the government is reading and recording all calls, messages on
the platform. This is patently false and has been debunked earlier as well.
It is best to ignore this message and not forward to others. Read more about it here.
Google and others on the
new social media rules
The new IT rules impact all
social media intermediaries and companies, not just WhatsApp or Facebook or
Twitter. This includes Google as well, which is another major player in the
market.
In a statement, CEO Google
Sundar Pichai said the company will comply with all laws. “It’s obviously early
days and our local teams are very engaged… we always respect local laws in
every country we operate in and we work constructively. We have clear
transparency reports, when we comply with government requests, we highlight
that in our transparency reports,” he said, reported PTI.
While WhatsApp is fighting a
lawsuit against the new IT rules, its parent company Facebook. “Pursuant to the
IT Rules, we are working to implement operational processes and improve
efficiencies. Facebook remains committed to people’s ability to freely and safely
express themselves on our platform,” a spokesperson for the company said.
Twitter has issued a statement
on its platform around the IT rules as well. “We, alongside many in civil
society in India and around the world, have concerns with regards to the use of
intimidation tactics by the police in response to enforcement of our global
Terms of Service, as well as with core elements of the new IT Rules,” the
statement said.
“We plan to advocate for
changes to elements of these regulations that inhibit free, open public
conversation. We will continue our constructive dialogue with the Indian
Government and believe it is critical to adopt a collaborative approach. We
believe that it is the collective responsibility of elected officials,
industry, and civil society to safeguard the interests of the public,” the
statement adds.
Under the new guidelines, significant
social media intermediaries (those with more than 50 lakh users in India) have
to appoint a resident grievance officer, a chief compliance officer and a nodal
contact person. The guidelines state these employees need to be residents of
India.
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