Sparking a debate in India, Meta-owned popular messaging platform WhatsApp has said it will exit the domestic market if asked to break message encryption.
The government had said earlier that if there is no way to find the originator of messages without breaking encryption, then the company should come up with some other mechanism.
In 2019, the Centre asked the messaging platform to implement an identifier. It will allow the government and WhatsApp to pinpoint who sent which message, without having to read its contents.
Now, during a hearing of WhatsApp and Meta's petition challenging a rule of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in the Delhi High Court, the company has threatened to quit the Indian market, if asked to do so.
The bench will now hear the cases on August 14.
What is the case?
Rule 4(2) in IT Rules, 2021 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.
The rule, though 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 stated that an order of this nature will not be passed if less intrusive means can identify the originator of the information.
What did WhatsApp say?
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.
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.
"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 was quoted as saying in the report.
The bench then asked if the rule was in place anywhere else in the world.
"No, not even in Brazil," the advocate replied.
The bench then responded that privacy rights are not absolute and "somewhere balance has to be done" 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.
