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'Dangerous invasion of privacy': WhatsApp moves Delhi HC against new IT rules

WhatsApp’s encryption enables “freedom of expression”, for various stakeholders, including government officials, journalists, members of ethnic or religious groups, teachers and students alike without “fear of retaliation”, the petition states
By Deeksha Bhardwaj
UPDATED ON MAY 26, 2021 05:23 PM IST

New Delhi: Instant messaging application WhatsApp has contested the government’s new social media guidelines and has asked the Delhi High Court to scrap the traceability provision as it is “unconstitutional” and “illegal” as it constitutes a “dangerous invasion of privacy”. It has also sought that no criminal liability is imposed for any non-compliance with the rules.

The messaging platform on Tuesday moved the court against the new rules announced in February for digital media companies, saying the requirement for them to adopt features such as traceability for identifying originators of messages violated the right to privacy under the Indian law and the company’s end-to-end encryption policy. The deadline to comply with section (4) of the rules lapsed on May 25, three months after they were notified with prominent social media platforms such as Twitter, Facebook and WhatsApp not taking the necessary measures.

The company contests the rule that enables traceability of the first originator on the grounds that it lacks legislative competence, violation of fundamental rights and for exceeding the limit of the parent Act (Information and Technology Act, 2000). WhatsApp feels that requesting intermediaries to identify the first originator of messages constitutes “a dangerous invasion of privacy”.

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In its petition, seen by Hindustan Times, the company has argued that it has always worked to ensure that communication between users is “free” and “without fear”, for which reason it uses end-to-end encryption. The messaging application has constantly asserted that the only ones who can decrypt the messages are the recipients, and even WhatsApp cannot access the information. Observance of the new guidelines will require a companywide change for WhatsApp in terms of storing information and breaking end-to-end encryption.

HT reached out to the ministry but did not receive a response immediately.

WhatsApp’s encryption enables “freedom of expression”, for various stakeholders, including government officials, journalists, members of ethnic or religious groups, teachers and students alike without “fear of retaliation”, the petition states.

The company has further highlighted that enabling such a trace would require it to store data of every user for a long time in order to enable the government to identify the first originator. The company has also factored in concerns raised by various key actors on how traceability will compromise the fundamental right to privacy. It has cited concerns raised by the Software Freedom Law Centre, Centre for Communication and Governance at National Law University and COAI.

Also Read| WhatsApp’s refusal to comply with new rules a clear act of defiance: Centre

The company believes that enabling the provision will put users at risk of retaliation, such as journalists and political activists.

Citing the Puttaswamy judgment of 2017, WhatsApp has established that the rule infringes upon the fundamental right to privacy as it does not meet the legality, necessity and proportionality requirement.

Moreover, the argument that the rule is ultra vires the parent provision, section 79 of the IT Act, 2000 has also been factored in, as the section only allows the government to prescribe “due diligence” to maintain their immunity.

In terms of sharing information with law enforcement agencies, WhatsApp already has a dedicated team of individuals who review and respond to requests for user data in the country.

Concerns regarding traceability being incompatible with end-to-end encryption have been raised by several platforms, including Signal, another popular messaging mobile application and various civil society activists.

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