By : Satyaki Paul
On May 25, 2021 WhatsApp petitioned in Delhi High Court against the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. They moved to High Court because of the contradictory subclause of the new rules wherein social media intermediaries shall enable the identification of the first originator of the information.
WhatsApp is an end-to-end messaging system wherein an individual can only himself/herself can only read what another individual has sent, nobody of intermediary level can intercept such messages, not even WhatsApp itself. This end-to-end encryption was introduced by Open Whisper Systems, which has also developed the Signal messaging application.
According to WhatsApp, traceability induces private companies to give in the names of people who might have shared something even if they did not create it i.e., shared it out of concern or sent it to check its accuracy. Thus, through such an approach, guiltless individuals might get caught up in police inquiries, or even go to jail, for sharing content that later connotes a brickbat in the eyes of a government, even if they did not mean any harm by sharing it in the first place. Furthermore, the threat that whatever someone pensdown can be traced back to them takes away people’s privacy and would have anunsettling effect on what people say even in private space, therein violating universally recognized principles of right to privacy.
In this context, Ministry of Electronics and Information Technology (MeITY) wrote that: “No Fundamental Right, including the Right to Privacy, is absolute and it is subject to reasonable restrictions”. A traceability order shall only come about, as Rule 4(2) states, “for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of provocation to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for a term of not less than 5-years”. Furthermore,the traceability measure will be a measure of “last resort”. As per rule, “in complying with an order for identification of the first originator, no substantial social media intermediary shall be required to unveil the contents of any electronic message, any other information related to the first originator, or any information related to its other users”. The Ministry has also lambasted WhatsApp for making “no specific objection” to this requirement till date. The release says, “Any operations being run in India are subject to the law of the land. WhatsApp’s rebuttal to conform with the guidelines is a clear act of insubordination of a measure whose intent can certainly not be doubted”.
In global context, the Software Freedom Law Centre (SFLC) has observed that: “In order to kowtow with the traceability provisions, there is a high possibility that the significant social media intermediaries will have to pausethe end-to-end encryption and access the contents of a message, in so doing compromising the privacy of communication. This will considerably wane security of end-to-end encrypted platforms. This move would brutallydepress theprivacy by design principle by acting both ways i.e., being a valued target for malicious third parties”.
Nonetheless, the intent of decrees between both the parties are seen through the above-mentioned paragraphs. And, now only time can tell whether this move of the government will bear fruit or we are gradually moving towards a surveillance state similar to that of Chinese/North Korean-style in the near future. The author works as a Ph.D. Research Scholar at the Department of Anthropology, University of Calcutta, and the co-author of the book Anthropology For All (2021).