Online messaging app WhatsApp told the Delhi High Court that it will shut down its operations in India if it is forced to break its end-to-end encryption and identify the original senders of messages on its platform.
“As a platform, we are saying, if we are told to break encryption, then WhatsApp goes,” Mr Karia told a Bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora, a Bar and Bench report said.
This stance was presented by WhatsApp’s lawyer, Tejas Karia, during a hearing at the Delhi High Court where WhatsApp and its parent company Meta (formerly Facebook) have challenged Rule 4(2) of India’s 2021 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules.
Rule 4(2) requires significant social media intermediaries, like WhatsApp, to enable the identification of the original sender of information upon a lawful order.
Karia expressed that the new rule was imposed without user consultation and goes against privacy, mandating WhatsApp to retain millions of messages for extended periods, a unique requirement not found elsewhere globally.
“We will have to keep a complete chain and we don’t know which messages will be asked to be decrypted. It means millions and millions of messages will have to be stored for a number of years,” he said.
The counsel for WhatsApp argued that complying with this rule would necessitate breaking the end-to-end encryption that is central to its platform and the privacy it provides to users.
WhatsApp and Meta contended that this rule violates users’ fundamental right to privacy, as established by the Supreme Court’s Puttaswamy judgment.
The Indian government represented by advocate Kirtiman Singh argued that WhatsApp and Facebook monetize user data for commercial purposes, and are not entitled to claim they protect user privacy.
He contended that there needs to be a mechanism to trace the origin of messages on WhatsApp, as the platform has faced scrutiny before the US Congress.
The Indian government also maintained that tracing the origin of information is necessary to combat misinformation and hate speech, especially in the context of the COVID-19 pandemic.
The court has called for a balance to be struck between user privacy and the need for traceability of messages and scheduled the matter for further hearing on August 14, 2024.
The Ministry of Electronics and Information Technology (MeitY) stated that WhatsApp has already violated the fundamental rights of Indian users by denying them any dispute resolution rights within the country.
MeitY argued that if the IT Rules 2021 are not implemented, law enforcement agencies will face difficulties in tracing the origin of fake messages, contending that it would lead to the proliferation of such messages across other platforms, potentially disturbing peace and harmony in society,” it added.
“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,” WhatsApp had said earlier.
The Union government framed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 this February.
