The government, in response to WhatsApp filing a case in the Delhi High Court against new rules that would require it to break end-to-end encryption, said the requirement was necessary for public interest and identifying the first originator of messages leading to crimes.
“It is very important to note that such an order, to trace first originator, under Rule 4(2) of the said guidelines shall be passed only for the purposes of prevention, investigation, punishment etc. of inter alia an offence relating to sovereignty, integrity and security of India, public order incitement to an offence relating to rape, sexually explicit material or child sexual abuse material punishable with imprisonment for not less than five years,” the Ministry of Electronics and Information Technology said in a statement on Wednesday.
WhatsApp on Tuesday filed a legal challenge against the Indian government, protesting new IT rules before the Delhi High Court, which would require messaging services to “trace” the origin of particular messages. It has said the rule will undermine privacy of individuals.
Under the recently notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, the Section 4(2) requires that social media intermediaries with more than 5 million users and providing messaging services enable identification of the first originator of problematic content that may harm the country’s interests and several other provisions described in the Rules.
The social media intermediary will have to do this in response to a judicial order passed by a court or by a competent authority under section 69 of the IT Act.
The Minister for Electronics and IT, Ravi Shankar Prasad, said in the statement that “none of the measures proposed by India will impact the normal functioning of WhatsApp in any manner whatsoever and for the common users, there will be no impact”.
It is pertinent to note that the rule to trace the first originator of information is mandatory for each and every significant social media intermediary, irrespective of their method of operation, the Ministry noted.
Minister Prasad said in the statement that “the entire debate on whether encryption would be maintained or not is misplaced. Whether Right to Privacy is ensured through using encryption technology or some other technology is entirely the purview of the social media intermediary. The Government of India is committed to ensuring Right of Privacy to all its citizens as well as have the means and the information necessary to ensure public order and maintain national security. It is WhatsApp’s responsibility to find a technical solution, whether through encryption or otherwise, that both happen.”
In its petition, WhatsApp has argued that requiring intermediaries “to enable the identification of the first originator of the information” in India on end-to-end encrypted messaging services constitutes a dangerous invasion of privacy. This would require WhatsApp to build the ability to identify the first originator of every communication sent in India on its platform, as there is no way to predict which message will be the subject of such an order seeking first originator information.
In its statement, MeitY said: “As per all established judicial dictum, no Fundamental Right, including the Right to Privacy, is absolute and it is subject to reasonable restrictions. The requirements in the Intermediary Guidelines pertaining to the first originator of information are an example of such a reasonable restriction.”
WhatsApp has further said in its petition that as per existing law, to justify an intrusion into the fundamental right of privacy, the three requirements of legality; need, defined in terms of a legitimate State aim; and proportionality need to be met.
“When Rule 4(2) of the Intermediary Guidelines is examined through the test of proportionality then that test is also met. The cornerstone of this test is whether a lesser effective alternative remedy exists. As per the Intermediary Guidelines, the originator of information can only be traced in a scenario where other remedies have proven to be ineffective, making the same a last resort measure. Moreover, such information can only be sought as per a process sanctioned by the law thereby incorporating sufficient legal safeguards,” the Ministry said.
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