Del HC| Whatsapp challenges Intermediary Rules, says traceability will break end-to-end encryption, breach privacy; Union of India says no Fundamental Right is absolute

Delhi High Court: A petition was submitted before the High Court of Delhi by Whatsapp LLC with a prayer to issue a writ of mandamus or any other appropriate writ, direction, or order to declare that (i) Impugned Rule 4(2) is violative of Articles 14, 19(1)(a), 19(1)(g), and 21 of the Constitution, ultra vires the IT Act, and illegal as to end-to-end encrypted messaging services; and (ii) criminal liability may not be imposed for noncompliance with Impugned Rule 4(2) and any attempt to impose criminal liability for non-compliance with Impugned Rule 4(2) is unconstitutional, ultra vires the IT Act, and illegal.

Petitioner WhatsApp LLC (“Petitioner”) had filed this Writ Petition challenging the requirement in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules”) that intermediaries like Petitioner enable “the identification of the first originator of the information” in India on their end-to-end encrypted messaging services (commonly referred to as “traceability”), upon government or court order. Petitioner respectfully submitted that this requirement forces Petitioner to break end-to-end encryption on its messaging service, as well as the privacy principles underlying it, and infringes upon the fundamental rights to privacy and free speech of the hundreds of millions of citizens using WhatsApp to communicate privately and securely. Petition challenges Rule 4(2) of the Intermediary Rules (“Impugned Rule 4(2)”) for the reason that,

  • it infringes upon the fundamental right to privacy without satisfying the three-part test set forth by the Hon’ble Supreme Court: (i) legality; (ii) necessity; and (iii) proportionality relying heavily on S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
  • violates the fundamental right to freedom of speech and expression, as it chills even lawful speech.
  • requirement to enable the identification of the first originator of information in India is ultra vires its parent statutory provision, Section 79 of the Information Technology Act, 2000 (“IT Act”)

What is impugned Rule 4(2)?

“A significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed under section 69 by the competent authority as per the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009, which shall be supported with a copy of such information in electronic form: Provided that an order shall only be passed for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of 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: Provided further that no order shall be passed in cases where other less intrusive means are effective in identifying the originator of the information: Provided also that in complying with an order for identification of the first originator, no significant social media intermediary shall be required to disclose the contents of any electronic message, any other information related to the first originator, or any information related to its other users: Provided also that where the first originator of any information on the computer resource of an intermediary is located outside the territory of India, the first originator of that information within the territory of India shall be deemed to be the first originator of the information for the purpose of this clause.”

A more detailed explanation of how Petitioner’s end-to-end encryption system works was provided in its Technical White Paper.

In Central Public Information Officer, Supreme Court v. Subhash Chandra Agrawal, (2020) 5 SCC 481 it was affirmed by the Supreme Court that the right to privacy includes the right to anonymity.

Imposing a requirement to enable the identification of the first originator of information in India would undermine all of these benefits. For example, (i) journalists could be at risk of retaliation for investigating issues that may be unpopular; (ii) civil or political activists could be at risk of retaliation for discussing certain rights and criticizing or advocating for politicians or policies; and (iii) clients and attorneys could become reluctant to share confidential information for fear that the privacy and security of their communications is no longer ensured.

In  Ram Jethmalani v. Union of India, (2011) 8 SCC 1 it was held “fundamental rights cannot be sacrificed on the anvil of fervid desire to find instantaneous solutions to systemic problems”.

In Shayara Bano v. Union of India, AIR 2017 SC 4609 the Hon’ble Supreme Court had held that laws are “manifestly arbitrary” in violation of Article 14 of the Constitution when they are “obviously unreasonable”, capricious, irrational, without adequate determining principle, or excessive and disproportionate and Rule 4(2)’s requirement to enable the identification of the first originator of information in India is “manifestly arbitrary”.

In its response to the contentions raised by WhatsApp, Union of India in its press release on Wednesday, said,

“Government respects the Right To Privacy and has no intention to violate it when WhatsApp is required to disclose the origin of a Particular message. Such Requirements are only in case when the message is required for Prevention, Investigation or Punishment of Very Serious Offences related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material”

With respect to Article 21, the press note said that no Fundamental Right is absolute. Moreover, the test of proportionality laid down in KS Puttaswamyv. Union of India,(2017) 10 SCC 1,finds full applicability in the present context.

Additionally, WhatsApp’s refusal to comply with the Intermediary guidelines is a “clear act of defiance” and an “unfortunate attempt to prevent the same from coming into effect”

The press note also points out the updated privacy policy of WhatsApp hinting their malafides; “At one end, WhatsApp seeks 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. On the other hand, WhatsApp makes every effort to refuse the enactment of the Intermediary Guidelines which are necessary to uphold law and order and curb the menace of fake news.”

Citing International practices and norms, it is added that, “In July 2019, the governments of the United Kingdom, United States, Australia, New Zealand and Canada issued a 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. Brazilian law enforcement is looking for WhatsApp to provide suspect 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.”

Read the full Press Note: 

Click to access Press-Note-on-WhatsApp-HC-Case.pdf

[WhatsApp LLC v. Union of India, W.P. (C) NO. _______ OF 2021, dated 25-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

For the petitioner: Mr Tejas Karia,Mr Pavit Singh Katoch for Shardul Amarchand Mangaldas & Co.

Also Read

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

 

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