The Delhi High Court has said privacy rights are not absolute, and called for balance.
WhatsApp's big statement in the Delhi High Court that breaking message encryption would be the end of the platform in India has sparked a debate on the balance between a citizen's right to privacy and the government's need to ensure national security. The statement was made during a hearing of WhatsApp and Meta's petition challenging a rule of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The rule in question, Rule 4(2), states that social media companies engaged in providing messaging services should reveal who sent a message if there is an order to do so by a court or a competent authority.
"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," the rule states.
It comes with a caveat that the information will only be sought for offences related to national security, public order, or those related to rape, sexually explicit material or child sexual abuse material, which provide for a minimum jail term of five years. It also states that an order of this nature will not be passed if less intrusive means can identify the originator of the information.
What WhatsApp Said
In its petition, WhatsApp has sought that the rule be declared unconstitutional and that no criminal liability should accrue to it for non-compliance. The traceability requirement, the petition said, would force the company to break end-to-end encryption and violate the fundamental rights to privacy and free speech of the hundreds of millions of users who use WhatsApp's platform to communicate.
Stressing on this point and asserting that the rule was brought in without any consultation, Advocate Tejas Karia, appearing for WhatsApp, told the Delhi High Court that people use the messaging platform because it guarantees privacy with its end-to-end encryption. "As a platform, we are saying, if we are told to break encryption, then WhatsApp goes," he told the bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora, according to a Bar and Bench report.
Another key contention was that the rule would require WhatsApp to store millions of messages for years. "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 bench then asked if the rule was in place anywhere else in the world.
"Have these matters been taken up anywhere in the world? You have never been asked to share the information anywhere in the world? Even in South America?"
"No, not even in Brazil," the advocate replied.
'Balance Needed'
The bench said privacy rights are not absolute and "somewhere balance has to be done." This was after the Central government counsel said the rule was needed to trace the originator of messages on such platforms in cases like those related to communal violence.
The Centre also told the court that WhatsApp and Facebook monetise users' information and are not legally entitled to claim that it protects privacy. Efforts to make Facebook more accountable are underway in various countries, it pointed out.
The government had also said earlier that if there is no way to find the originator of messages without breaking encryption, then WhatsApp should come up with some other mechanism.
The bench will now hear the cases on August 14.