Context:

  • WhatsApp’s lawsuit taking the Indian government to court over the traceability clause in the new IT Rules 2021 has been filed in the Delhi High Court.
  • The new IT rules include a traceability clause that requires social media platforms to locate “the first originator of the information” if required by authorities.

Relevance:

GS-II: Polity and Governance (Government Policies & Interventions, Issues arising out of the design and implementation of such policies)

Dimensions of the Article:

  1. Traceability Clause in the new IT Rules
  2. What does WhatsApp’s lawsuit state?
  3. What has WhatsApp said about ‘traceability’?
  4. Why can’t WhatsApp impose traceability?
  5. Justice K. S. Puttaswamy (Retd.) vs Union of India Case

Traceability Clause in the new IT Rules

Click Here to read about India’s New IT Rules for Intermediaries

  • The new IT rules include a traceability clause that requires social media platforms to locate “the first originator of the information” if required by authorities.
  • It should be noted that this rule will impact most messaging apps such as Signal, Telegram, Snapchat, Wire and others.

What does WhatsApp’s lawsuit state?

  • 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 decision.
  • The plea states that the court should declare the traceability clause as “unconstitutional” and should not allow it to come into force.
  • It is also challenging the clause which puts “criminal liability” on its employees for noncompliance, it is learnt.

What has WhatsApp said about ‘traceability’?

  • WhatsApp said that the requirement to ‘trace’ chats would be the “equivalent of asking WhatsApp to keep a fingerprint of every single message sent on WhatsApp.” This would mean that the platform will have to break end-to-end encryption, which is turned on by default for all messages. (End-to-end encryption ensures that no third-party, not even the messaging app itself can track or read messages.)
  • WhatsApp says it is all for “reasonable and proportionate regulations”, but cannot support “eroding privacy for everyone, violating human rights, and putting innocent people at risk.”

Why is WhatsApp against finding the originator of a message?

  • End-to-end encryption ensures that no one can read the message, except for the sender and the receiver. This includes WhatsApp itself. Nor does the app keep a log of who is sending what message and to whom.
  • And given it cannot read the contents of a message, finding the originator is even harder. Further many of the messages are just copied or forwarded by users.
  • WhatsApp says that if it had to trace an originator, then it would have to “store information”. The argument is tracing even one message means tracing every single message on the platform.
  • In order to trace messages, WhatsApp will have to add some sort of “permanent identity stamp” or effectively ‘fingerprint’ each message, which it says will be like a mass surveillance program.

Why can’t WhatsApp impose traceability?

  • WhatsApp’s argument is that traceability, even if enforced, is not foolproof and could lead to human rights violations.
  • Further, they will have to “turn over the names of people who shared something even if they did not create it, shared it out of concern, or sent it to check its accuracy.”
  • In its blog post, it notes that “innocent people could get caught up in investigations, or even go to jail, for sharing content that later becomes problematic in the eyes of a government.” It also adds that such an approach will violate “recognised principles of free expression and human rights.”
  • Internet experts have also argued against digital fingerprinting techniques to achieve traceability, cautioning these can be easily impersonated.
  • Experts are clear that fingerprinting techniques are open to abuse, and in the end will undermine encryption entirely. Apps would have to remove encryption in order to implement such digital signatures on messages.
  • WhatsApp says in order “to trace even one message, services would have to trace every message”, because “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.”

WhatsApp’s argument on why traceability won’t work

  • WhatsApp too states that tracing messages will be “ineffective and highly susceptible to abuse.”
  • If a user simply downloaded an image and shared it, took a screenshot and resent it, or sent an article on WhatsApp that someone emailed, then regardless of not being the original creator – the user who shared it on WhatsApp would be determined to be the originator of that content.
  • WhatsApp states that “traceability” goes against the basic principles of how law enforcement and investigations work. In a typical law enforcement request, a government requests technology companies provide account information about a known individual’s account. With traceability, a government would provide a technology company a piece of content and ask who sent it first.

Justice K. S. Puttaswamy (Retd.) vs Union of India Case

  • The right to privacy of an individual was brought to the fore by the issuance of Aadhar Cards – Retired Justice Puttaswamy challenged the constitutionality of Aadhar before the Supreme Court by filing a writ petition and contended that with regard to all the previous apex court judgements, the Right to Privacy is a fundamental right and the Aadhar procedure violated this right.
  • The Supreme Court in its judgement pronounced by a 9-judge bench stressed upon the following points:
  • It was held that privacy concerns in this day and age of technology can arise from both the state as well as non-state entities and as such, a claim of violation of privacy lies against both of them.
  • The Court also held that informational privacy in the age of the internet is not an absolute right and when an individual exercises his right to control over his data, it may lead to the violation of his privacy to a considerable extent.
  • It was also laid down that the ambit of Article 21 is ever-expanding due to the agreement over the years among the Supreme Court judges as a result of which a plethora of rights has been included within Article 21.
  • The court stated that Right to Privacy is an inherent and integral part of Part III of the Constitution that guarantees fundamental rights. The conflict in this area mainly arises between an individual’s right to privacy and the legitimate aim of the government to implement its policies and a balance needs to be maintained while doing the same.
  • The SC also declared that the right to privacy is not an absolute right and any incursion of privacy by state or non-state actors must satisfy the following triple test:
    1. Legitimate Aim
    2. Proportionality
    3. Legality

Impact of the Judgement

  • The decision given in M.P. Sharma v Satish Chandra, which held that the Right to Privacy is not protected by the Constitution of India, stands over-ruled.
  • The decision in Kharak Singh, to the degree it holds that Right to Privacy is not guaranteed by Part III, also stands over-ruled.
  • The right to privacy of an individual is not only protected by the Constitution under Article 21 but is also an intrinsic part of the scheme of Part III which guarantees fundamental rights.

-Source: Indian Express

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