Faced with a deadline to comply with the Indian government’s new rules for social media intermediaries, which needs them to make provisions for “identification of the first originator of the information”, Facebook-owned messaging platform WhatsApp has moved the Delhi High Court challenging this aspect of the new rules. The petition was filed on May 25, the final date of compliance.
In its plea, WhatsApp is invoking the 2017 Justice K S Puttaswamy vs Union Of India case to argue that the traceability provision is unconstitutional and against people’s fundamental right to privacy as underlined by the Supreme Court decision. It has prayed to declare traceability unconstitutional and stop it from coming into force, along with preventing criminal liability to its employees for non compliance.
“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. “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,” the spokesperson added.
It is contending that traceability was contradictory to the concept of end-to-end encryption which tries to prevent others from finding out who send a message. According to WhatsApp, traceability would force private companies to collect and store “who-said-what and who-shared-what” data for billions of messages daily just for the requirement of law enforcement agencies.
The messaging platform believes it is imposable to understand the original context of many messages given that users are used to copy pasting content seen on websites or social media platforms. It also says traceability cannot be implemented in a way which prevents tampering of the data given the massive scale and opened up such platforms to new vulnerabilities and makes them less secure.
In a new webpage that went live today, WhatsApp argues that “traceability inverts the way law enforcement typically investigates crimes”. “In a typical law enforcement request, a government requests technology companies provide account information about a known individual’s account. With traceability, a government would provide a technology company a piece of content and ask who sent it first,” the post reasons.
The post titled, ‘What is traceability and why does WhatsApp oppose it?’ says: “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.”
On Tuesday, Facebook had said it aimed to comply with the provisions of Information Technology rules and was in discussion with the government on a few more issues. “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 had said.
This came a day after The Indian Express reported that none of the three significant social media intermediaries — Facebook, Instagram, and Twitter — had yet appointed a resident grievance officer, a chief compliance officer and a nodal contact person as per the government norms announced on February 25. They were given three months to comply.
As per the new rules, the IT Ministry had these intermediaries to submit a monthly report on the number of grievances filed against the content on their platform. It also wanted them to make provisions for “identification of the first originator of the information”.
