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WhatsApp vs Government: The Privacy Wall

After the lapse of time for compliance with the new IT rules, WhatsApp is seeking legal recourse against government provision, while government says the company never objected to its implementation

The deadline to comply with the new IT rules of intermediaries has caused a great deal of concern for users of still non-compliant social media and messaging giants like Facebook, WhatsApp and Twitter if that would affect the access and features on such apps. Now WhatsApp has approached the Delhi High court, seeking relief against the new rules that seeks to trace the origin of a message, among other provisions, calling the rules a violation of right to privacy.

"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," WhatsApp said in its statement. In the meantime, it said it would continue to engage with the Centre on practical solutions, including responding to valid legal requests for information available with it.

The new IT rules covering intermediaries and social media platforms, notified in the end of February, were aimed to impose additional obligations on social media intermediaries and digital media. It not only imposed requirements such as an annual notice to users on policies and bigger list of prohibited information, setting up of a grievance redressal system, and assistance to government agencies, significant social media intermediaries (SSMI) - those with over 50 lakh registered users - were saw additional obligations.

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Among others, the rules require the SSMIs to identify the first originator of information if requested through either a court order of any competent authority under Section 69 of the IT Act. Such order could be issued in the interest of sovereignty, integrity and security matters. And this is what WhatsApp is opposing.

The company explains that technology and privacy experts have determined that traceability breaks end-to-end encryption and would severely undermine the privacy of billions of people who communicate digitally. Though reasonable and proportionate regulations are important, eroding privacy for everyone, violating human rights, and putting innocent people at risk is not the solution.

WhatsApp said it is committed to doing all it can to protect the privacy of people's personal messages, which is why it opposes traceability. Though sources said that the company which is now opposing similar rules in Brazil had taken the legal route due to the fear of attracting penal provisions now. Additionally, the traceability would not require platform to collect more data just in case the law enforcement might ask for. There is also the fear of state policing and such massive data collection could make them more vulnerable to hackers.

The government in its response has stated such tracing would be sought only if required for Prevention, Investigation or Punishment of Very Serious Offences related to the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material.

It also claimed that the rules were framed after consultation with various stakeholders and social media intermediaries, including but not limited to WhatsApp. However, the government also said that after October 2018, WhatsApp made no specific objects to Government of India in writing relating to the requirement to trace the first originator in relation to serious offences. It said that the company had sought time to extend the time for enforcement of guidelines but did not make any formal reference that traceability is not possible.

Asking WhatsAppnot to doubt the intent of the guidelines, Union IT Minister Ravi Shankar Prasad said, "The Government of India is committed to ensuring right of privacy to all its citizens as well as have the means and the information necessary to ensure public order and maintain national security. It is WhatsApp's responsibility to find a technical solution, whether through encryption or otherwise, that both happen."