Facebook-owned WhatsApp filed a legal complaint in the Delhi high court on 26 May 2021 against the Indian government seeking to block the New Media Rules coming into force on Wednesday. The imputation is that the new regulations would force WhatsApp and Facebook to break individual privacy protections.
According to press reports, the lawsuit requests the Delhi high court to declare that one of the new rules is a violation of citizen’s privacy rights in the Indian constitution. This regulation requires social media companies to identify the ‘first originator of information’ when demanded by the authorities.
While the new rules require social media companies to reveal the names of people credibly accused of wrongdoing, WhatsApp says that it cannot just do this alone in practice. Since messages are end-to-end encrypted, to comply with the law, it says it would have to break the encryption at both ends – for receivers and originators of messages.
“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,” a WhatsApp spokesperson said in a statement. “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.”
Sources familiar with the matter said that given that non-compliance with the IT rules risks criminal penalties, the company felt it had no choice but to take the issue to court. The company has opposed laws or legal action that would break end-to-end encryption in the past, too, sources said, referring to a matter currently being heard by the Brazilian Supreme Court.
Government spokesmen in recent days have questioned the sanctity of the privacy of messaging apps, saying that WhatsApp routinely shares this information with its parent FaceBook and that the Indian constitution’s protection of privacy ‘is not absolute.’
In its plea, WhatsApp cited a 2017 Indian Supreme Court ruling supporting privacy in the Justice Puttaswamy case. In that case, the court found that privacy is sacrosanct except where legality, necessity, and proportionality weighed against it. WhatsApp says that the New Media Rules fail all three of those tests, starting with the lack of explicit parliamentary backing.
Other news reports cite Riana Pfefferkorn of the Stanford Internet Observatory, who wrote in March, “The new traceability and filtering requirements may put an end to end-to-end encryption in India.” There are several other court challenges to the new rules pending in the Delhi High court and elsewhere. Digital media sites contest the section that applies the new IT rules to digital media publications and platforms. In one case, journalists argue that the underlying law does not support the extension of technology regulations to digital publishers, including decency and taste standards.
There are more significant issues, such as the Indian government’s ambivalence towards the tech giants. While it has to make obligatory nationalistic statements about the location of data and servers, most experts see these as hubris in the face of a poor understanding of how technology works nowadays. A minister insists that “WhatsApp must find a technical solution” to the privacy issue.
Notably, Facebook had an established policy enunciated by its senior official in India of going soft on the Modi government, which the Wall Street Journal also exposed. On the one hand, the government maintains a social media army to influence elections, undermine violence and human rights investigations, and troll outspoken journalists and citizens. And on the other, it goes into a tizzy when citizens throw light on the tragic reality of its mismanagement of the Covid-19 pandemic and especially its second wave that has wrought unnecessary death and misery on every section of the population in every state.
Tensions have also increased in the past week after a police visit to Twitter’s offices in Delhi and Gurgaon earlier this week because the micro-blogging platform labeled posts by a spokesman for the ruling party at the center and others as containing “manipulated media” and forged content. Many of the Indian government requests display hubris and a total lack of self-belief and self-confidence in the institution and hard-won traditions of democratic governance.