Traceability Rule Will Break End-To-End Encryption; Can Put Privacy Of Journalists, Activists, Politicians At Risk : WhatsApp Tells Delhi High Court

In its plea to challenge the traceability clause as mentioned under Rule 4(2) of the Information Technology Rules, 2021, WhatsApp has contended that the aforesaid requirement will "force it to build the ability to identify the first originator for every message sent in India on its platform upon request by the government forever." 

Relying heavily on the judgment of KS Puttuswamy v. Union of India, WhatsApp contends that the said requirement does not pass the tests enshrined under Art. 21 of the Constitution, is manifestly arbitrary in violation of Art. 14, is violative of the Right to Freedom of Speech and Expression and sec. 79 and 69A of the Information Technology Act.

Challenging the aforesaid rule, WhatsApp has submitted that this requirement forces it 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.

"The requirement that intermediaries like Petitioner enable the identification of the first originator of information in India on their platforms puts end-to-end encryption and its benefits at risk. There is no way to predict which message will be the subject of such a tracing order. Therefore, Petitioner would be forced to build the ability to identify the first originator for every message sent in India on its platform upon request by the government forever. 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." The plea reads.

The plea also states that such an invasion on privacy will put professionals of risk including journalists who "could be at risk of retaliation for investigating issues that may be unpopular"; civil or political activists "for discussing certain rights and criticizing or advocating for politicians or policies" and clients and attorneys "who could become reluctant to share confidential information".

Submitting that the Supreme Court has, in the privacy judgment, recognised communicational privacy, informational privacy and associational privacy, the plea states that the aforesaid tracing requirement eliminates the right of the hundreds of millions Indian citizens using WhatsApp to maintain the privacy of their messages, which is antithetical to end-to-end encryption and the core privacy principles underlying it.

"There is no law enacted by Parliament that expressly requires an intermediary to enable the identification of the first originator of information in India on its end-to-end encrypted platform or otherwise authorizes the imposition of such a requirement through rule-making. While Impugned Rule 4(2) seeks to impose such a requirement, the Impugned Rule is not a valid law as it is subordinate legislation, passed by a Ministry and not Parliament, that is ultra vires its parent statute, Section 79." The plea reads.

Furthermore, stating that the requirement does not pass the necessity test, the plea reads thus:

"Impugned Rule 4(2) allows for the issuance of orders to identify the first originator ofinformation in India without judicial oversight, let alone prior judicial oversight, which means there is no "guarantee against arbitrary State action". Impugned Rule 4(2) therefore should be struck down as it is an unconstitutional invasion of the fundamental right to privacy."

Challenging the Rule as being violative of Freedom if Speech and Expression, the plea states that once citizens become aware that SSMIs have "built the ability to identify the first originator of information in India on their end-to-end encrypted messaging services", such individuals "will not feel safe to speak freely for fear that their lawful private communications will be used against them, thereby infringing their rights to privacy and free speech."

In view of this, Whatsapp seeks the following prayer:

"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 viresthe IT Act, and illegal as to end-to-end encrypted messaging services; and (ii) criminal liability may not be imposed for non-compliance 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."

Click here to read/download the petition