Why WhatsApp’s arguments against GoI’s rules on message traceability are not convincing

Let’s recall what exactly GoI is asking for: The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 came into force on May 26. One of its provisions requires identification of the first originator of any information if it is required by a judicial order or by an order of a competent authority under Section 69 of the Information Technology Act, 2000.

WhatsApp has approached the Delhi high court, challenging this rule on three grounds – i) it violates the fundamental right to privacy and freedom of speech and expression guaranteed under Article 19 of the Constitution; ii) it is ultra vires the Information Technology Act, 2000; and iii) it violates Article 14 of the Constitution.

Interestingly, though WhatsApp has invoked Article 19 (1) that provides for the right to freedom of speech and expression as a fundamental right, it has conveniently ignored Article 19 (2) that provides for reasonable restrictions on fundamental rights on certain specified grounds.

IT rules say origin of a message is only required for the purpose of prevention, detection, investigation, prosecution or punishment of certain offences – these are related to sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, 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.

A comparison between these provisions and Article 19 (2) makes it clear that the new rules are well within what is already provided in the Constitution as grounds for imposing reasonable restrictions on fundamental rights.

Placing another safeguard against any potential misuse of this provision, IT rules further provide that orders under this provision shall be passed only if other less intrusive means of investigation have become ineffective. This implies that asking for the originator of a message should be resorted to only as a last recourse.

New rules have also made it very clear that in the process of finding the originator of a malicious message, social media platforms are not required to share contents of the message or any other information about the originator or other users.

This means GoI is neither insisting on breaking WhatsApp’s encryption nor asking it to trace the entire path through which a message has travelled.

Many other democracies have also started raising their concerns over misuse of WhatsApp for illegal activities. On December 11, 2019 the United States and European Union (EU) issued a joint statement that said while encryption is important for protecting cyber security and privacy, the use of warrant-proof encryption by terrorists and other criminals compromises the ability of law enforcement agencies to protect victims and the public at large.

In July 2019, the UK, US, Australia, New Zealand and Canada issued a joint communique concluding that, “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.”

On October 8, 2019 the Council of the European Union adopted its conclusions on combating child sexual abuse, urging the tech industry to ensure lawful access for law enforcement and other competent authorities to digital evidence, including encrypted evidences without prohibiting or weakening encryption.

What India has asked WhatsApp is much less than what many other democracies have demanded or suggested.

Plus, it is not as if there’s no technological solution. V Kamakoti, professor in the department of computer science and engineering at IIT Madras, had filed an affidavit in the Madras high court giving details of a technology solution after the court had consulted him in July 2019.

Use of advanced cryptographic technology for attaching a unique hash with every encrypted message is one of the options. WhatsApp can also throw an open challenge to innovators around the world – come up with an effective and efficient solution on tracing the originator of a message without diluting encryption.

We will get to know whether WhatsApp explored all options before the legal challenge. Court proceedings will tell us whether the traceability issue is one of law, technology or intent.