It will be an understatement to say that WhatsApp is unhappy about certain IT rules that come into effect in India today. These are the rules that all “significant” social media companies, or in other words almost all big tech companies like Facebook, WhatsApp, Twitter, Netflix, have to follow. WhatsApp on Wednesday challenged Rule 4(2) of the new IT Rules on the basis that it infringes upon the fundamental right to privacy.
The company has filed a case in Delhi High Court. Now, India Today has exclusively accessed the petition and can reveal the parts of it that form the core of arguments made by WhatsApp.
In its petition, WhatsApp says that the “IT Rules would force us to break end-to-end encryption on our messaging service and infringe upon the fundamental right to privacy and free speech of hundreds of millions of citizens using WhatsApp.”
The chat app is fairly blunt in its assessment of the new rules and sees a clear problem with them. It says, “Govt forcing WhatsApp to build the ability to identify the first originator of information in India would infringe upon the privacy of every individual who uses WhatsApp in India.”
Then it cites an earlier Supreme Court order on privacy and notes “Fundamental rights cannot be sacrificed on the anvil of fervid desire to find instantaneous solutions to systematic problems.”
The new IT Rules that Indian notified earlier on February 25, and which come into effect from today, contain a provision that makes it mandatory for chat apps to trace every message to its original sender. Such a mechanism, if a chat app like WhatsApp implements, will be unique for an app that uses End-To-End encryption.
In its petition, WhatsApp highlights that this is not feasible. “There is no way to predict which message can be a subject of a tracing order by the government,'' notes WhatsApp in its petition. “The new IT Rules allow tracing without any judicial review.”
The chat app is that India is asking it for something that no other country has ever asked for. “We are not aware of any country that requires intermediaries to do this,” notes the petition. “By creating the capacity for surveillance at will and with neither the opportunity for speakers to be served any notice nor any opportunity for them to contest improper uses of the capacity, such a provision expands the State’s capacity for invisible and unaccountable surveillance. The harm that can be caused is dangerous and disproportionate.”
The chat app also seeks to highlight that creating a mechanism that allows tracing of all messages will have a chilling effect on freedom of speech.
“IT rules could put journalists at risk of retaliation for investigating issues that may be unpopular,” it notes. “Civil and political activists could be at risk of retaliation for discussing certain rights and criticising or advocating for politicians or policies. Clients and lawyers could become reluctant to share confidential information for fear of privacy.
“Freedom is not only for the thought that we cherish but also for the thought that we hate,” notes the petition. “Citizens will not speak freely for fear that their private communications will be traced and used against them.”
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