The deadline for social media platforms like Facebook, Twitter, Instagram and Whatsapp, to comply with provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 ended on Tuesday night. But now, Whatsapp has moved Delhi High Court against one of the key requirements listed by the government in the February 25, 2021 notification.

The contentious provision requires “identification of first originator of information” and Whatsapp, a popular messaging platform owned by Facebook says that this will require them to collect and store more information about information shared by billions of users daily and this traceability clause would hamper privacy of users, placing them under virtual surveillance.

Traceability and end-to-end encryption

Whatsapp promises end-to-end encryption and the traceability clause would be contradictory to it.

“WhatsApp deployed end-to-end encryption throughout our app in 2016, so that calls, messages, photos, videos, and voice notes to friends and family are only shared with the intended recipient and no one else (not even us). “Traceability” is intended to do the opposite by requiring private messaging services like WhatsApp to keep track of who-said-what and who-shared-what for billions of messages sent every day,” said Whatsapp in a statement.

Referring to requirements laid down by the Government of India without specifically naming it, Whatsapp said, “Some governments are seeking to force technology companies to find out who sent a particular message on private messaging services. This concept is called “traceability.” Technology and privacy experts have determined that traceability breaks end-to-end encryption and would severely undermine the privacy of billions of people who communicate digitally.” It added, “Reasonable and proportionate regulations for an increasingly digital world are important, but eroding privacy for everyone, violating human rights, and putting innocent people at risk is not the solution. WhatsApp is committed to doing all we can to protect the privacy of people’s personal messages, which is why we join others in opposing traceability.”

Whatsapp further explained, “Traceability requires messaging services to store information that can be used to ascertain the content of people’s messages, thereby breaking the very guarantees that end-to-end encryption provides. In order to trace even one message, services would have to trace every message. That’s because there is no way to predict which message a government would want to investigate in the future.” Then it went on to use the dreaded S-word: Surveillance. It said, “In doing so, a government that chooses to mandate traceability is effectively mandating a new form of mass surveillance. To comply, messaging services would have to keep giant databases of every message you send, or add a permanent identity stamp — like a fingerprint — to private messages with friends, family, colleagues, doctors, and businesses.”

The Indian Express quoted a Whatsapp spokesperson as saying, “Requiring messaging apps to ‘trace’ chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermines people’s right to privacy.” Further, the messaging platform said, “We have consistently joined civil society and experts around the world in opposing requirements that would violate the privacy of our users. In the meantime, we will also continue to engage with the Government of India on practical solutions aimed at keeping people safe, including responding to valid legal requests for the information available to us.”

The February 25 Ethics Code

SabrangIndia had previously reported on how the provisions mentioned in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 notified on February 25, 2021, had raised suspicions of surveillance and censorship, especially given how MEITy had worded its February 25 press release about the notification about the Ethics Code. “Social media platforms welcome to do business in India but they need to follow the Constitution and laws of India,” it had said, adding, “These Rules are a fine blend of liberal touch with gentle self-regulatory framework. It works on the existing laws and statues of the country which are applicable to content whether online or offline.”

Referring to the traceability clause, the notification had said, “Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information that is required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to 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 punishable with imprisonment for a term of not less than five years.”

The Ministry of Electronics and Information Technology (MEITy) at that time justified the code saying it had come up with these guidelines “amidst growing concerns around lack of transparency, accountability and rights of users related to digital media and after elaborate consultation with the public and stakeholders.” 

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