New Delhi: WhatsApp has filed a lawsuit in the Delhi High Court challenging the government’s new digital rules saying the requirement for the company to provide access to encrypted messages will break privacy protections.
The petition, filed on Tuesday evening, seeks declaring the rule requiring the message service provider to identify the first originator of any message flagged as a violation of privacy rights provided by the constitution.
A company spokesperson confirmed filing the petition.
“Requiring messages 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,” the spokesperson said in a statement on Wednesday.
“We have consistently joined civil society and experts around the world in opposing requirements that would violate the privacy of our users.”
The petition came just as the new digital rules kicked in. Non-compliance with the rules could take away legal protection of social media companies such as Facebook, Twitter, YouTube, Instagram and WhatsApp for user content posted on their platforms.
They previously enjoyed immunity for content posted by any third party user on their platforms. The new rules require them to take down any content flagged by the authorities within 36 hours, and set up a mechanism to respond to complaints.
They are also required to use automated processes to take down pornography.
“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,” WhatsApp spokesperson said.
The new rules, announced on February 25, require large social media platforms like Twitter, Facebook, Instagram and WhatsApp to follow additional due diligence, including the appointment of a chief compliance officer, nodal contact person and resident grievance officer.
Non-compliance with rules would result in these social media companies losing their intermediary status that provides them exemptions and certain immunity from liabilities for any third-party information and data hosted by them. In other words, they could be liable for criminal action, in case of complaints.
‘Significant social media intermediaries’ – defined as those with over 50 lakh registered users – were given three months time to comply with the additional requirements.
Notably, the rules require significant social media intermediaries – providing services primarily in the nature of messaging – to enable identification of the “first originator” of the information that undermines sovereignty of India, security of the state, or public order.
This could have major ramifications for players like Twitter and WhatsApp.
Facebook and Google on Tuesday had said they are working towards meeting the compliance requirements for the new guidelines.
India is a large market for these digital platforms. As per data cited by the government, India has 53 crore WhatsApp users, 41 crore Facebook subscribers, 21 crore Instagram subscribers, while 1.75 crore account holders of microblogging platform Twitter.
WhatsApp has added a new page in its FAQ section explaining why it is opposing the traceability mandate by some governments.
…There is no way to predict which message a government would want to investigate in the future. In doing so, a government that chooses to mandate traceability is effectively mandating a new form of mass surveillance, it said.
WhatsApp noted that to comply, messaging services would have to keep giant databases of every message users send, or add a permanent identity stamp — like a fingerprint — to private messages with friends, family, colleagues, doctors, and businesses.
Companies would be collecting more information about their users at a time when people want companies to have less information about them, WhatsApp said.
WhatsApp said tracing messages would be ineffective and highly susceptible to abuse .
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, it said.
Recently, the Facebook-owned company had drawn flak over its new privacy policy — the government last week ordered WhatsApp to withdraw its controversial privacy update, saying the changes undermine the sacrosanct values of privacy, data security and harms rights and interests of Indian citizens.
A raging debate had ensued earlier this year after WhatsApp said it will update its terms of service and privacy policy around how it processes user data and partners with Facebook to offer integrations across the social media giant’s products.
WhatsApp had, on Monday, said it will not limit the functionality for users not agreeing to its new privacy policy but will continue to remind users about the update, and maintain this approach till the forthcoming data protection law comes into effect.
India is the biggest market for WhatsApp, and remains a critical market with its large population base and burgeoning internet adoption.
Following the backlash faced by WhatsApp earlier this year, the popularity of rivals like Telegram and Signal had surged as users thronged these platforms.
