Whatsapp's case against Indian Government's new traceability provision

Whatsapp's first case against a Goverment was filed in India, on the 25th of May
Document type
Legal Opinion/Petition

In fact, not only was a case filed by them but also by their parent company, Facebook. The two petitions are substantively similar - they challenge the traceability provision of Rule 4(2) under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021Rules. These rules are the latest rules to be issued under the parent legislation of India's Information Technology Act. Under the new Rules, Whatsapp is directly under threat since it comes under the ambit of a signficant social media intermediary. A social media intermediary is defined as one that "primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services." A signficant one being those intermediaries that have more than 5 million registered users in the country. 

This suit is an unprecedented step in Whatsapp's actions in tackling increasing pressure to provide access, for law enforcement, to messages shared on the platform. They are concerned that since there is no way to predict which message will be the subject of such a tracing order, Whatsapp would be forced to permanently build the ability to identify the first originator for every message sent in India on its platform.  This breaks end-to-end encryption and the privacy principles underlying it, and impermissibly infringes upon users’ fundamental rights to privacy and freedom of speech. However, they do not definitively comment on the technical feasibility of running Whatsapp without E2E. Instead, they focus on explaining how encyrption is imbedded in Whatsapp, how it functions and its necessity. They emphasize on how traceability will undermine and be incompatible with encryption but do not go as far as saying it is impossible for the two to co-exist. Hence, they focus on the drawbacks and legal violations of the provision rather than the technicality. 

Facebook's suit, on the other hand, is pre-emptive in the eventuality that the Indian Government finds them a messaging service under the purview of this provision. Moreover, their secret messages feature on Messenger uses end-to-end encryption as well which could be forced to implement the tracebility provision. 

The main arguments in the Whatsapp case are as follows:

a)  Right to Privacy under Right to Life under Article 21 of the Indian Constitution

The Puttaswamy Judgment was a Supreme Court judgment in 2017 that conferred the Right to Privacy by reading it under the Right to Life under Article 21 of the Indian Constitution. Rule 4(2) infringes upon the fundamental right to privacy without satisfying the three-part test set forth by the Supreme Court: (i) legality; (ii) necessity and (iii) proportionality. 

b)  Right to Freedom of Speech and Expression - Article 19 1(a) of the Indian Constitution

Rule 4(2) violates the fundamental right to freedom of speech and expression, as it chills even lawful speech. Citizens will not speak freely for fear that their private communications will be traced and used against them, which is antithetical to the very purpose of end-to-end encryption. 

c)   Ultra-vires (beyond the scope of):

  1. S.69 of the Information Technology (IT) Act: 

Section 69A empowers the Central Government to direct an intermediary to block access to content on its platform. Section 69A(2) also empowers the Central Government to prescribe “procedures and safeguards subject to which such blocking for access by the public may be carried out”. However, Rule 4(2) is neither a “procedure” nor “safeguard” “subject to which a blocking order may be carried out.” Accordingly, the Rule exceeds the scope of  Government's rule-making authority under Section 69A. 

2. Section 79 of the IT Act: 

Section 79 is a safe harbor immunity provision that protects intermediaries from liability for third-party content on their platforms, and provides that an intermediary must observe “due diligence” prescribed by the Central Government to enjoy that immunity. Compelling an intermediary to fundamentally alter its platform to enable the ability to identify the first originator of information is going much further than "due diligence”

d) Equality under Law - Article 14 of the Indian Constitution

The Supreme Court has 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. 4(2) violates this with the following two reasons:

1. It is disproportionate as the harms it causes far outweigh its purported benefits.

 2. Secondly, the Supreme Court has held that subordinate legislation suffers from manifest arbitrariness when Parliament did not intend to give authority to make such legislation. As explained above, mandating traceability goes beyond the authority of the Government to do, under the IT Act. 

Document type
Legal Opinion/Petition
Issuing entity
Private Sector
Issues addressed
Trigger for OSP obligations