WhatsApp still may be legal and its new encryption service may not be breaking any law.
The new end-to-end encryption service has turned many heads towards security and many have also questioned the legality of the app citing laws under India’s IT policy.
However, India still lacks any definitive policy for OTT chat platforms like WhatsApp or Facebook Messenger and also doesn’t say anything about the encryption being used by these apps.
“In my view, under the existing regulatory framework, 256 bit encryption is certainly not prohibited. When it comes to the telecommunications space, the framework gets a little more complex with differing requirements (like restriction on bulk encryption and cap of key lengths at 40bits) being applicable to holders of different licenses or authorisations. However, in any case, these obligations currently only apply to license holders themselves (such as ISPs and TSPs) and not to internet, (i.e., over the top (OTT)) applications like WhatsApp,” Tarun Krishnakumar, a Delhi-based lawyer specialising in technology, told The Indian Express .
Krishnakumar also said that the government was working on a draft policy for a regulation to restrict players like WhatsApp but the draft was scrapped and is being reworked.
Also, the issue of WhatsApp using 256-bit encryption might come back to bite the government as most other countries have raised their bit limit of encryption to at least 80 bits compared to India’s standard of 40 bits under the IT policy.