The recent legal battle between Whatsapp and the Indian government over security breach has grabbed headlines. And Whatsapp is determined to not let its users privacy policy be maligned. The determination goes as far as to shut down operations if ‘forced’ to breach encryption policy.
Dispute over encyrption breach
The Union government of India passed an amendment of IT rules act in 2021. Under the original IT Rules users are prohibited to create, upload or share content that threatens the unity of India or public order, is pornographic, violates copyright or patent, or contains software virus. Intermediaries must inform users about these restrictions.
The amendment provides, which stands as an issue of contention for Whatsapp, A significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed under section 69 by a competent authority.
It also adds that this will form as the last option for the investigating agency, if less intrusive means can be deployed then this act cannot be provoked. The intermediary is neither required to disclose the contents of any electronic message nor any other information related to the first originator.
This minor breach of encyption is essential to safeguard the citizens against offences such as rape, sexually explicit content, child abuse, properity rights issues, software virus and misinformation, and the country against any national or foreign threat.
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Whatsapp’s Concern
The Meta owned messaging company with more than 400 million users in India argues that this legislation has been introduced without consultation. The media giant believes that decrypting texts would cause them to alter user privacy policy, resulting in diminished reliability of its users in the platform. It contends that the amendment violates their fundamental right to free speech and privacy, reminding us of Shreya Singhal vs Union on India case, where in the SC struck down section 66 of the IT act given its vague and violatory (of article 19) nature.
Whatsapp’s legal representative, Advocate Tejas Karia, also highlighted the issue of storing millions of texts for indefinite periods, an alien requirement. “We will have to keep a complete chain and we don’t know which messages will be asked to be decrypted. It means millions and millions of messages will have to be stored for a number of years,” he said.
The Defendant
In Opposition, the ministry of Electronics and Information Technology has argued that the media giant, Whatsapp and parent company Meta, have already breached privacy rights with user information monetisation. They further argued the need for this rule to catch the perpetrators of communal violence through false messages.
A two-member Delhi High court bench — comprising acting chief justice Manmohan and Justice Pritam Singh Arora — stressed upon the need for a balanced approach to the situation and noting that privacy rights can be breached if necessary. Presently, the case hearing has been posted to August 14.
