Indian government reportedly sued by WhatsApp over new privacy rules

The WhatsApp logo seen displayed on a smartphone with a computer model of the COVID-19 coronavirus in the background.

WhatsApp sued the Indian government on Wednesday to stop what it said were oppressive new internet rules that would require it to make people’s messages “traceable” to outside parties for the first time, New York Times reports from San Francisco.

Tech Crunch drops the lead as ‘WhatsApp has sued the Indian government challenging the second largest internet market’s new regulations that could allow authorities to make people’s private messages “traceable,” and conduct mass surveillance.’

This story cuts across virtually all major media headlines across the globe with CNBC stating pointers as:

·         WhatsApp has filed a legal complaint in Delhi against the Indian government seeking to block regulations coming into force on Wednesday that experts say would compel the California-based Facebook unit to break privacy protections, sources said.

The WhatsApp messaging application is seen on a phone screen August 3, 2017. REUTERS/Thomas White

A WhatsApp advertisement is seen on the front pages of newspapers at a stall in Mumbai, India, January 13, 2021. REUTERS/Francis Mascarenhas

• The lawsuit, described to Reuters by people familiar with it, asks the Delhi High Court to declare that one of the new rules is a violation of privacy rights in India’s constitution since it requires social media companies to identify the “first originator of information” when authorities demand it.

And the New York Times submitting thus: The rules, which would require WhatsApp to make people’s messages traceable, would violate people’s privacy, the messaging service said.

The case asks the Delhi High Court to declare that one of the new IT rules is a violation of privacy rights in India's constitution since it requires social media companies to identify the "first originator of information" when authorities demand it, people familiar with the lawsuit told Reuters.

The lawsuit, described to Reuters by people familiar with it, asks the Delhi High Court to declare that one of the new rules is a violation of privacy rights in India’s constitution since it requires social media companies to identify the “first originator of information” when authorities demand it.

According to WhatsApp, given that messages are encrypted end-to-end it would have to break encryption for receivers of messages as well as the originators to comply with the new law.

"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 said in a statement.

The New York Times puts it this way:

But WhatsApp argued that even if it tried enacting India’s new “traceability” rules, the technology would not work. Such a practice is “ineffective and highly susceptible to abuse,” the company said.

Other technology firms and digital rights groups like Mozilla and the Electronic Frontier Foundation said this week that they supported WhatsApp’s fight against “traceability.”

“The threat that anything someone writes can be traced back to them takes away people’s privacy and would have a chilling effect on what people say even in private settings, violating universally recognized principles of free expression and human rights,” WhatsApp said.

According to a thread report by Reuters, “The WhatsApp lawsuit escalates a growing struggle between Prime Minister Narendra Modi's government and tech giants including Facebook, Google's parent Alphabet (GOOGL.O) and Twitter (TWTR.N) in one of their key global growth markets.

“Tensions rose after police visited Twitter’s offices this week. The micro-blogging service had labelled posts by a spokesman for India’s dominant party and others as containing “manipulated media”, saying forged content was included.

“New Delhi has also pressed tech companies to remove what it has described as misinformation on the COVID-19 pandemic ravaging India, and some criticism of the government's response to the crisis, which is claiming thousands of lives daily.

“While the new law only requires WhatsApp, which has half a billion users in India, to unmask people credibly accused of wrongdoing, it says it cannot in practice do that alone”

As at press time and according to CNBC, Reuters could not independently confirm the complaint had been filed in court by WhatsApp, which has nearly 400 million users in India, nor when it might be reviewed by the court. The people with knowledge of the matter declined to be identified because of the sensitivity of the issue.

According to the New York Times report, “Civil society and technical experts around the world have consistently argued that a requirement to ‘trace’ private messages would break end-to-end encryption and lead to real abuse,” a WhatsApp spokesman said. “WhatsApp is committed to protecting the privacy of people’s personal messages and we will continue to do all we can within the laws of India to do so.”

The report also states that the lawsuit is part of a broadening battle between the biggest tech companies and governments around the world over which of them has the upper hand. Australia and the European Union have drafted or passed laws to limit the power of Google, Facebook and other companies over online speech, while other countries are trying to rein in the companies’ services to stifle dissent and squash protests. China has recently warned some of its biggest internet companies against engaging in anticompetitive practices.

In India, Prime Minister Narendra Modi and his ruling Bharatiya Janata Party have worked for several years to corral the power of the tech companies and more strictly police what is said online.  In 2019, the government proposed giving itself vast new powers to suppress internet content, igniting a heated battle with the companies.

Still from the report, the rules that WhatsApp is objecting to were proposed in February by Ravi Shankar Prasad, India’s law and information technology minister. Under the rules, the government could require tech companies to take down social media posts it deemed unlawful. WhatsApp, Signal and other messaging companies would also be required to create “traceable” databases of all messages sent using the service, while attaching identifiable “fingerprints” to private messages sent between users.

But according to a report by Tech Crunch, ‘India first proposed WhatsApp to make software changes to make the originator of a message traceable in 2018. The suggestion came at a time when WhatsApp was grappling with containing spread of false information in India, where circulation of such information had resulted in multiple real-life casualties.

‘But its suggestion didn’t become the law until this year. Traceability requirement is part of New Delhi’s sweeping IT rules that also require social media firms to appoint several officers in India to address on-ground concerns, and also gives authorities greater power over taking down posts it deems offensive.

‘“Technology and privacy experts have determined that traceability breaks end-to-end encryption and would severely undermine the privacy of billions of people who communicate digitally. Reasonable and proportionate regulations for an increasingly digital world are important, but eroding privacy for everyone, violating human rights, and putting innocent people at risk is not the solution. WhatsApp is committed to doing all we can to protect the privacy of people’s personal messages, which is why we join others in opposing traceability,” the messaging platform, used by over 2 billion users worldwide, said in a blog post.’

Reuters reports that the response of the companies to the new rules has been a subject of intense speculation since they were unveiled in February, 90 days before they were slated to go into effect.

The report states further that “The Intermediary Guidelines and Digital Media Ethics Code, promulgated by the ministry of information technology, designates “significant social media intermediaries” as standing to lose protection from lawsuits and criminal prosecution if they fail to adhere to the code.

“WhatsApp, its parent Facebook and tech rivals have all invested heavily in India. But company officials worry privately that increasingly heavy-handed regulation by the Modi government could jeopardize those prospects.

“Among the new rules are requirements that big social media firms appoint Indian citizens to key compliance roles, remove content within 36 hours of a legal order, and set up a mechanism to respond to complaints. They must also use automated processes to take down pornography.

However, Reuters reports on the court challenges that Facebook has said it agrees with most of the provisions but is still looking to negotiate some aspects. Twitter, which has come under the most fire for failing to take down posts by government critics, declined to comment. Some in the industry are hoping for a delay in the introduction of the new rules while such objections are heard.

The report states further that the WhatsApp complaint cites a 2017 Indian Supreme Court ruling supporting privacy in a case known as the Puttaswamy judgment, according to the people familiar with it.

The court found that privacy must be preserved except in cases where legality, necessity and proportionality all weighed against it. WhatsApp argues that the new law fails all those tests, starting with the lack of explicit parliamentary backing, the report added.

More than a billion people rely on WhatsApp to communicate with friends, family and businesses around the world. Many users are in India, New York Times reports, adding that Critics said the new rules were being used to silence government detractors. Last month, Facebook, Instagram and Twitter were ordered to take down dozens of social media posts that were critical of Mr. Modi’s government and its response to the coronavirus pandemic, which has ravaged the country. Government officials said the posts should be removed because they could incite panic and could hinder its response to the pandemic.

Also from the report, the social media companies complied with many of the requests by making the posts invisible inside India, though they were still visible to people outside the country. In the past, Twitter and Facebook have reposted some content after determining that it didn’t break the law.

Media reports has it that only rarely has WhatsApp pushed back. The service has been shut down many times in Brazil after the company resisted requests for user data from the government. And it has skirmished with U.S. officials who have sought to install “back doors” in encrypted messaging services to monitor for criminal activity.

A report by Tech Crunch says ‘WhatsApp’s move on Wednesday is highly unusual. Facebook has engaged closely with New Delhi over the years — to a point where allegations were made that it didn’t take action on some politicians’ objectionable posts because it feared it would hurt its business in India, the world’s second largest internet market.

‘“We have never seen a company sue the Indian government for asking for information.” said Jayanth Kolla, chief analyst at consultancy firm Convergence Catalyst. “We have seen companies push back, but they have never explored legal options in the past.”

‘WhatsApp is already fighting a legal case filed by the India government, in the same aforementioned court, over its new privacy policy as New Delhi tries to get the Facebook-owned firm to withdraw the new terms.

‘Last year India banned over 200 Chinese apps, including TikTok, which at the time of blocking identified India as its biggest overseas market. India said it was banning the apps because they posed threat to national security and defence of India.

‘None of the Chinese firms sued the Indian government, with at least two telling TechCrunch on the condition of anonymity that it’s nearly impossible to win a court case in India against the government when the national security issue has been raised.

‘“So much so, that you are going to have a hard time even finding a lawyer who represents you,” an Indian official added.

‘India’s IT minister Ravi Shankar Prasad cited similar national concerns when he unveiled the revised IT rules in February this year.

‘Tension has been brewing between American technology giants and the Indian government over the past few months. Earlier this year, Twitter refused to block accounts that criticized New Delhi and Prime Minister Narendra Modi.

‘Last month, the Indian government ordered Facebook, Instagram, and Twitter to take down posts that were critical of Modi’s handling of the coronavirus pandemic. Last week, New Delhi objected to Twitter’s labeling of some of its politicians’ tweets as manipulated media. Earlier this week, police in Delhi visited Twitter offices to “serve a notice.”’

Journalists argue that the extension of technology regulations to digital publishers, including the imposition of decency and taste standards, is unsupported by the underlying law.