WhatsApp-India Govt Row Over New Internet Rules – The Story So Far

Facebook-owned WhatsApp has moved the Delhi High Court challenging the government’s new IT rules that are scheduled to come into force on Wednesday, 26 May, according to a report by Reuters. According to report, WhatsApp requested the Delhi High Court to declare that one of the new rules is a violation of privacy rights as per the Constitution of India. Later in the day, the Union ministry of electronics and information technology (MeitY) clarified that the Government respects the Right to Privacy and has no intention to violate it when requiring WhatsApp to disclose the origin of a message. Here’s the story so far.

WhatsApp Sues Indian Govt Over New Internet Rules

WhatsApp has argued that the rule requires social media companies to identify the “first originator of information” when asked by government authorities. While the law requires WhatsApp to unmask only people credibly accused of wrongdoing, the company says it cannot do that alone in practice. Because messages are end-to-end encrypted, to comply with the law WhatsApp says it would have break encryption for receivers, as well as “originators” of messages.

The lawsuit escalates a growing struggle between Indian Prime Minister Narendra Modi’s government and tech giants including Facebook, Google parent Alphabet and Twitter in one of their key global growth markets. All these companies have invested heavily in India. But they worry that increasingly heavy-handed regulation by the government could jeopardize those prospects.

It needs to be informed here that social media platforms like Facebook, Twitter, WhatsApp and Instagram were likely to face a ban in India if they do not comply with the new Intermediary Guidelines set by the Indian government. The deadline to accept the guidelines set by the government ended on May 25. However, none of the social media platforms have complied with the new regulations yet that were issued by the government three months ago.

In February 2021, the Ministry of Electronics and Information Technology (MeitY) had given a three-month time to the social platforms to comply with the new IT rules.

Tensions grew after a police visit to Twitter’s offices earlier this week. The micro-blogging service had labelled posts by a spokesman for the dominant party and others as containing “manipulated media”, saying forged content was included.

The government has also pressed the tech companies to remove not only what it has described as misinformation on the COVID-19 pandemic ravaging India, but also some criticism of the government’s response to the crisis, which is claiming thousands of lives daily.

The WhatsApp complaint cites a 2017 Indian Supreme Court ruling supporting privacy in a case of 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.

The court found then that privacy must be preserved except in cases where legality, necessity and proportionality all weighed against it. WhatsApp argues that the law fails all three of those tests, starting with the lack of explicit parliamentary backing.

Of the experts who have backed WhatsApp’s arguments, Stanford Internet Observatory scholar Riana Pfefferkorn wrote in March said, “The new traceability and filtering requirements may put an end to end-to-end encryption in India.”

With more than 500 million people using its services, India is WhatsApp’s biggest market and the company has big expansion plans in the country. Meanwhile, Facebook on Tuesday said it remains committed to people’s ability to freely and safely express themselves on its platform. The social media giant added that it continues to discuss a few of the issues which need more engagement with the government.

What the govt. says in response

Later in the day, the government of India in a press release said it recognizes that ‘Right to Privacy’ is a Fundamental right and is committed to ensure the same to its citizens. However, it added that “as per all established judicial dictum, no Fundamental Right, including the Right to Privacy, is absolute and is subject to reasonable restrictions.”

“The Government of India is committed to ensure the Right of Privacy to all its citizens but at the same time it is also the responsibility of the government to maintain law and order and ensure national security,” said Union Minister Ravi Shankar Prasad in a statement.

The press release also questions the platform’s commitment to user privacy: “At one end, WhatsApp seeks to mandate a privacy policy wherein it will share the data of all its user 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.”

Backing the government’s decision, Sahil Chopra, Founder & CEO- iCubesWire said, “In today’s world, everything we do on internet is traceable and trackable up to a major extent. I personally feel that the government is fair in asking for these guidelines and all these American giants should comply with them. Ideally, India should have gone the China way long ago, and built their own search, social and conversation engines, much for their own massive revenues, growth and control.”

The government response also states that WhatsApp is only required to trace the originator of a message 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.

Twitter and Google breaks silence

Twitter and Google said they would strive to comply with local laws, but remained committed to free speech and an open internet.

The micro-blogging site has also expressed concern about the safety of its employees in India, after the Delhi police visited its offices in Delhi and Gurgaon earlier this week. The government later accused Twitter of seeking to undermine the country’s legal system.

“Twitter’s statement is an attempt to dictate its terms to the world’s largest democracy,” MeitY said, adding that Twitter has a large user base in India, it earns significant revenue from its Indian operations but is also the most reluctant to appoint an India based grievance redressal officer and mechanism, chief compliance officer and nodal officer to whom its own users can complain, when they are subjected to offensive tweets.

Meanwhile, Google CEO Pichai said, “It’s obviously early days and our local teams are very engaged… we always respect local laws in every country we operate in, and we work constructively. We have clear transparency reports, when we comply with government requests, we highlight that in our transparency reports.”

According to the Internet Society that promotes the open development, evolution, and use of the Internet for the benefit of people globally said, “WhatsApp’s lawsuit is the first by a major social media company against India’s revised Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code), Rules, 2021 which were announced in February this year. The revised Guidelines include a traceability requirement, or the ability to track down the first originator of a particular piece of content or message.

While the Ministry of Electronics and Information Technology (MeitY) has emphasized that encryption is not a target in these new Guidelines, cybersecurity experts both in India and abroad have pointed out that it is simply not possible for companies such as WhatsApp to try to comply with the new guidelines without suppressing at least some features that are integral for strong encryption to work properly.

In fact, a 2020 report from these experts warned that “to comply with traceability requirements, platforms may be forced to enable access to the contents of their users’ communications, breaking end-to-end encryption and considerably weakening the security and privacy of their product.”

With the traceability requirement, the government appears to be compelling popular online platforms to weaken encryption without explicitly telling them to do so. The likely outcome will be for those platforms to stop offering end-to-end encrypted services altogether. End-to-end encryption is the gold standard for keeping Internet users and systems secure and an essential aspect of digital privacy which is imperative to the hundreds of millions of people in India who use WhatsApp.”

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