Privacy Row: No Fundamental Right Is Absolute, Govt Tells WhatsApp

WhatsApp has approached the HC on grounds that the new IT rules would cause them to break privacy protections.

WhatsApp has approached the high court on grounds that the new IT rules would cause them to break privacy protections.

(Photo: iStock)

The government respects the 'Right to Privacy' and has no intention to violate it when WhatsApp would be required to disclose the origin of a particular message, the Ministry of Electronics and IT said in a statement on Wednesday, 26 May, after the Facebook-owned messaging service moved the Delhi High Court, challenging the Centre's new digital platform rules.

Minister Ravi Shankar Prasad, in the release, stated, “None of the measures proposed by India will impact the normal functioning of WhatsApp in any manner whatsoever, and for the common users, there will be no impact."

"As per all established judicial dictum, no Fundamental Right, including the Right to Privacy, is absolute and it is subject to reasonable restrictions. The requirements in the Intermediary Guidelines pertaining to the first originator of information are an example of such a reasonable restriction (sic),” the release added.

'WhatsApp Messages Circulated in Case of Mob Lynching'

Prasad emphasised that it was very important to note that such an order, to trace the originator, under Rule 4(2) of the said guidelines, shall be passed only for the prevention and investigation of a crime.

"It is in the public interest that whoever started mischief, leading to such a crime, must be detected and punished. We cannot deny how in cases of mob lynching and riots etc WhatsApp messages are circulated. Such instances are already in the public domain. Hence, the role of who originated the message is very important," he said.

Centre Defends New IT Rules

The minister said that the new intermediary rules have been framed after consultation with various stakeholders and social media intermediaries, “including, but not limited, to WhatsApp”.

Prasad pointed out that after October 2018, no specific objection in writing was made by WhatsApp to the Government of India over the requirement to trace the originator concerning serious offences. "They have generally sought to extend the time for enforcement of guidelines but did not make any formal reference that traceability is not possible."

The minister also questioned WhatsApp's motives, which changed at the very last moment. "Despite having sufficient time and opportunity during the consultation process and after the rules were enacted, objection to the intermediary guidelines is an unfortunate attempt to prevent the same from coming into effect."

Targeting the new privacy policy of WhatsApp, the minister asserted that WhatsApp sought to mandate a privacy policy wherein it will share the data of all its user with its parent company Facebook for marketing and advertising purposes.

Find a Solution Via Encryption or Otherwise: Prasad

Prasad said, “The entire debate on whether encryption would be maintained or not is misplaced. Whether Right to Privacy is ensured through using encryption or some other technology is entirely the purview of the social media intermediary. “It is WhatsApp’s responsibility to find a technical solution, whether through encryption or otherwise, that both happen.”

Prasad pointed out international cases where WhatsApp has abided by the domestic laws:

• The governments of the United Kingdom, United States, Australia, New Zealand and Canada issued a communique concluding: “Tech companies should include mechanisms in the design of their encrypted products and services whereby governments, acting with appropriate legal authority, can gain access to data in a readable and usable format.”
• Brazilian law enforcement is looking for WhatsApp to provide suspects' IP addresses, customer information, geo-location data and physical messages.

“What India is asking for is significantly much less than what some of the other countries have demanded,” the statement from MeItY read.

Why Did WhatsApp Approach the Court?

According to a report by Reuters, WhatsApp had approached the high court on the ground that the new IT rules would cause WhatsApp to ‘break privacy protections.’

WhatsApp has asked the HC to declare one of the new rules as a violation of privacy rights as per the Constitution of India since it requires social media companies to “identify the originator of information” whenever authorities demand.

While the new laws require WhatsApp to trace the originator of the message, the company says it cannot do that because messages are end-to-end encrypted and to comply with the law, WhatsApp says, it would have break encryption for receivers, as well as “originators” of messages.

A report by The Indian Express states that WhatsApp is invoking the 2017 Justice K S Puttaswamy vs Union of India case to argue that the traceability provision is unconstitutional and against people’s fundamental right to privacy as underlined by the Supreme Court.

“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 undermine people’s right to privacy,” a WhatsApp spokesperson 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 shall 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 spokesperson added.

Earlier, on Tuesday, 25 May, Facebook said it aimed to comply with the provisions of Information Technology rules and was in discussion with the government on a few more issues.

“Pursuant to IT rules, we are working to implement operational processes and improve efficiency. Facebook remains committed to people’s ability to freely and safely express themselves on our platform,” a spokesperson for the company had said.

(With inputs from Reuters and Indian Express)