What Exactly Is The Dispute Between The Government of India And WhatsApp? Read Here

The Facebook-owned instant messaging app WhatsApp has moved Delhi High Court against the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 notified by the government on 25 February this year.

Earlier this week, media outlets had reported that several social media apps were yet to comply with the rules close to the three-month deadline of compliance on Wednesday (26 February).

What are the IT Rules 2021

The rules designate social media companies with more than 50 lakh users as ‘significant' social media intermediaries.

Such companies are required to appoint a resident grievance officer, a chief compliance officer, and a nodal contact person, and publish their details on the website of the company.

The rules mandate such companies to acknowledge the complaints within 24 hours of being filed and actioned upon them within a period of 15 days. The platforms will also have to provide immediate redressal for any government notices or court orders.

The rules also provide for active monitoring of the content on the platform; faster processes to take down certain content including revenge porn; self-regulation mechanisms; and also an oversight mechanism created by the Ministry of Electronics and Information Technology (MEITY).

The rules further require the companies to submit a monthly report on the number of grievances filed against the content on their platform or their policy, and their status in terms of resolution.

The new IT Rules also include a traceability clause, that is, social media companies will have to trace back a message to its original poster (OP) if so required by the government.

The rules are aimed at curbing rising instances of the use of social media to commit serious crimes, including, child pornography, planning a riot, mob lynching, financial fraud, terrorism, drug trade etc.

Why Social Media Giants Are Complaining

On 25 May, WhatsApp filed a lawsuit in the Delhi High Court against the traceability clause of IT Rules 2021.

Many WhatsApp like applications rely on end-to-end encryption (E2E) to guarantee user privacy. E2E makes sure that not even the messaging app itself can track or read messages. The app does not keep a record of who is sending what message and to whom.

WhatsApp has argued that the traceability clause of the government essentially means putting a fingerprint on each message (of the OP), which will break the E2E encryption, as well as mean WhatsApp storing large amount of data about the users.

In a blog post, WhatsApp said that traceability has its limitations. A person simply sending on WhatsApp a downloaded image, a screenshot or an article received on email will be marked as the OP.

Some experts have pointed out that digital fingerprinting techniques can be easily impersonated by cyber criminals, putting people’s safety at risk.

The blog post further says that in order to trace even one message, WhatsApp would have to trace every message 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,” it adds.

Compliance with the traceability clause would also mean re-engineering the app just for the Indian market.

WhatsApp has invoked Puttaswamy vs Union Of India case 2017 to urge the court to declare the traceability clause as “unconstitutional” since it is against people’s fundamental right to privacy as underlined by the Supreme Court decision in the case. It has also reportedly challenged the the clause which puts “criminal liability” on company employees for non-compliance.

Government’s side

The Government of India says that it is committed to ensure the Right of Privacy to all its citizens, and is only balancing it with the responsibility of the government to maintain law and order and ensure national security.

“As per all established judicial dictum, no fundamental right, including the Right to Privacy, is absolute and it is subject to reasonable restrictions. The requirements in the intermediary guidelines pertaining to the first originator of information are an example of such a reasonable restriction,” MEITY said.

On the traceability clause, the ministry stated that such requirements are only in case when the message is 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.

Union Minister Ravi Shankar Prasad also targeted WhatsApp for its alleged hypocrisy on commitment to privacy.

“At one end, WhatsApp seeks to mandate a privacy policy wherein it will share the data of all its users with its parent company, Facebook, for marketing and advertising purposes. On the other hand, WhatsApp makes every effort to refuse the enactment of the Intermediary Guidelines which are necessary to uphold law and order and curb the menace of fake news.”

WhatsApp’s new privacy policy also discriminates between Indian and European users. While an opt-out option to not share data with Facebook has been given to European users of WhatsApp, it has not been given to the Indian users.

MEITY also said that what India is asking for is significantly less than what some of the other countries have demanded.

“The governments of the United Kingdom, United States, Australia, New Zealand and Canada issued a communique stating that “tech companies should include mechanisms in the design of their encrypted products and services whereby governments, acting with appropriate legal authority, can gain access to data in a readable and usable format.”

“Brazilian law enforcement is looking for WhatsApp to provide suspects' IP addresses, customer information, geo-location data and physical messages,” it added.