Message tracing will violate privacy, freedom of speech: WhatsApp
WhatsApp said the provision requiring intermediaries to allow identification of the first information originator on their platforms could also expose journalists and activists to retaliation in India and undermine free speech rights and expression.
Citing the Supreme Court ruling on the right to privacy, the Facebook-owned WhatsApp messaging platform asked the Delhi High Court to challenge the traceability provision of the new 2021 IT rules, claiming that “this breaks end-to-end encryption … and impermissibly violates the fundamental rights of users to privacy and freedom of expression ”.
In a petition filed Tuesday evening, the last day to comply with the new rules, WhatsApp said the provision requiring intermediaries to allow the identification of the first creator of information on their platforms could also expose journalists and activists to retaliation. in India and violate their rights. freedom of expression and speech.
He said he was unaware of any country that required intermediaries to enable the identification of the first sender of information on end-to-end encrypted messaging services, and that states around the world had recognized the “significant benefits” end-to-end system. encryption and the dangers of undermining this security protocol.
The petition has not yet been registered for hearing. A spokesperson for WhatsApp said: ‘Requiring messaging apps to’ track ‘chats is like asking us to keep a fingerprint of every message sent on WhatsApp, which would break end-to-end encryption and wear out fundamentally infringe the right of individuals to privacy. . “
Rule 4 (2) of the Intermediary Rules, which WhatsApp wishes to overturn, states that “a major social media intermediary providing services primarily in the form of messaging must allow the identification of the first initiator of information about its IT resource,” where applicable. required ”by a court decision or order issued by a competent authority under the Information Technology Act.
The petition states that there is no way to predict which message will be subject to such a trace order.
“Therefore, Petitioner (WhatsApp) would be forced to develop the ability to identify the first sender for every message sent to India on its platform at the request of the government forever. This breaks end-to-end encryption and the privacy principles that underpin it, and impermissibly violates users’ fundamental rights to privacy and freedom of expression, ”he argued.
He said protecting the speaker’s privacy is essential to protect the right to freedom of speech and expression. “Indeed, privacy is inextricably linked with the right to freedom of speech and expression because it protects people from reprisals for expressing unpopular but legal views. It encourages users to express their ideas and opinions, report illegal activities and challenge popular opinions without fear of reprisal, while allowing the identification of the first author of the information in India harms privacy and discourages disclosure. freedom of expression, ”he said.
Such a demand, he said, would expose journalists to retaliation for investigating issues that may be unpopular, civil or political activists for discussing certain rights and criticizing or advocating for politicians or politicians, as well as clients and lawyers who may become reluctant to share confidential information “for fear that the confidentiality and security of their communications will no longer be assured”.
She argued that Rule 4 (2) infringed the fundamental right to privacy without meeting the three-part test set out by the Supreme Court in KS Puttaswamy v Union of India on aspects of legality, necessity and proportionality.
“The contested rule 4 (2) violates the fundamental right to freedom of speech and expression, as it cools even legitimate speech. Citizens will not speak freely lest their private communications be traced and used against them, which defeats the very purpose of end-to-end encryption, ”he said.
WhatsApp said the rule was ultra vires its parent statutory provision, namely Section 79 of the Information Technology Act, and the intent of the Information Technology Act. “To force intermediaries like Petitioner to allow identification of the top sender of information in India on their end-to-end encrypted messaging services, there must be a clear policy statement in Section 79 that Parliament intended impose such a requirement. However, no such statement exists in article 79, ”he said.
Indicating that it is cooperating with law enforcement agencies in India and continues to take action to assist them, WhatsApp said it has a dedicated team to review, validate and respond to requests from law enforcement agencies. order regarding user data in India. The petition points out that the rule is “particularly dangerous and disproportionate” because it does not impose a time limit and requires the company “to be able to identify the first source of information in India on its platform years later. sending the message ”.
The WhatsApp spokesperson said he would continue to engage with the Indian government on “practical solutions to keep people safe, including responding to valid legal requests for the information we have.”
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