[The Viewpoint] Facebook and Whatsapp: Crossing of the thin line of Data Privacy

OVERVIEW:

Privacy - a term, the existence whereof is sacred for people and the lack whereof is a treasure chest for corporates to cater to their commercial interests. We are living in times when we have, quite literally, handed out our privacy on a platter.

On January 4, 2021, we all woke up and, as is the wont, checked our phones to see the Whatsapp messages from both personal and official acquaintances. However, we were, instead, met with a notification from the company which informed us about the changes in its policy and required of us to agree to the same, latest, by 08-02-2021, failing which the services would be barred.

Companies update their policies time and again so this could not have been a surprise for us. However, the nature of the notification was enough to be a shock, for, it was an update of the company’s privacy policy which authorized Whatsapp to mine even more data than what was already being collected by it and being shared with third parties, including Facebook.

This caused a furore across the world over the impunity with which our privacy was being thrown to the winds by these two giants and this led to the migration by people to other applications slowly but gradually.

It is noteworthy that Whatsapp built its dominance amongst communication applications, primarily, on the strength of the end-to-end encryption of messages which ensured the privacy of its users. Even when Whatsapp was acquired by Facebook, it was an understanding between the two companies that Whatsapp would not be compromising on its privacy policy regarding the messages and Facebook acknowledged the same, although, for the time being.

On the other hand, Facebook is a company which, despite its assurances, has been notorious for compromising the privacy protocols of its users for its commercial gains and has been in the eye of storm either before the US Congressional hearings or for anti-trust violations in various jurisdictions It has acquired other social media platforms like Instagram and has been vying to expand its reach into the privacy of users in the name of interoperability between its companies. After years of resistance, Whatsapp has, finally, caved in and has diluted the privacy protocols to give access to Facebook to the information of its users.

SCOPE OF THE CHANGE IN POLICY:

Since the announcement by Whatsapp, there has been a criticism – and rightfully so – in all quarters against the change in policy. There is a general understanding that Whatsapp has compromised the privacy protocols for all spectrums of users, including chats between friends and families.

Although, the company has, indeed, backtracked on its core assurance and the backbone of its existence, it would be unfair to say that Whatsapp has compromised the policy in totality and has given a blanket access to Facebook and other companies. It is to be noted that private chats between individuals are still encrypted and, still, beyond the wingspan of Facebook. It is only the conversation we have with business accounts which have, now, been opened up and would be shared with Facebook and other companies in the name of improvements.

A perusal of the conditions and policies of Whatsapp provides a broader view of the circumstances. As per the policy, along with the information which was already being collected, like account registration information, mobile device information etc., content shared with a business would be visible to several people in that business. Further, it provides that business might be working with third-party service providers (including Facebook) to help manage their communication with customers which is a clear intimation to the users that the company is caving in to the pressures by its parent company.

Business accounts, which have been compromised, are tens of millions in number and the company conveniently wriggles out of any liability for explanation by categorically providing on the website that, in order to understand how the data is dealt with, users should go through the policies of the business or should contact the business directly. To make the matters worse, Whatsapp is conscious that it has backtracked on its assurances to its loyal customer base. This is evident by a rather off-the-cuff remark in their policy wherein the company is apprising its users that, even generally, any user could take the screenshot of the correspondence and share the same. Essentially, it is making a futile attempt to downplay the magnitude and cushion the backlash it is about to receive.

All said and done, at a time when Whatsapp is starting payment services options to its users, tweaking of privacy can be nothing but prejudicial.

WHATSAPP LLC AND WHATSAPP IRELAND LTD.:

This article is not just about the understanding of the change in its policy but also to apprise the readers that, as mighty as Facebook and Whatsapp seem to the general eye, they do lose their edge if the political dispensation stands before its people like a rock.

Going through the policy of Whatsapp, we come across that Whatsapp follows two different privacy policies – one for the European Union (EU) and one for the rest of the world. This is no secret that the European Union has been unrelenting when it comes to the interests of its citizens and, as such, it acts as a golden standard for the rest of the world.

European Union is dealt with by Whatsapp Ireland Ltd. and rest of the world is covered by Whatsapp LLC. While our privacy is taken for granted and thrown to the winds at whim, those in the EU are not supposed to share their data with Facebook.

This is quite evident by a perusal of the two policies. While the general policy only intimates about what information is being, and will be, collected, that for the EU provides its users an opt-out option along with the option of restricting the use of their data.

Whatsapp is in the process of updating the policy for EU as well which the citizens must agree to but data sharing is not to be a part of that revision.

Irish Data Protection Commission is the chief regulator of data services in EU and, as per the information available in public domain, sharing of the data of EU citizens could be done only after companies enter into an understanding regarding the same with the Commission. Going by the robust procedures and principles that EU has demonstrated over the years, it seems highly unlikely that it would allow Facebook or Whatsapp to compromise the privacy of its citizens.

At this juncture, I cannot help but observe that other jurisdictions have, conveniently, decided that the privacy and interests of their citizens are not an important consideration. India is about to enact her own Personal Data Protection law and this tendency is, unfortunately, quite visible in some amendments which the Government has proposed in the original Personal Data Protection Bill.

ALTERNATIVES:

In every walk of life, alternatives and their importance is realized in circumstances such as these. Over the course of last about two decades, Facebook reigned supreme when it came to social media and Whatsapp found a place in nearly every handset across the world. So deep was their influence that users could not bring themselves to think of any other alternative for the purpose. This was the reason which caused these companies to get predatory and monopolistic in their approach.

There have always been other communication apps in existence which provide encryption facility too but we always stuck to our old ways. However, now that their talons are digging deep into our skins, are we realizing the urgency of veering away and searching for other options.

Here, too, EU was a step ahead from the rest of the world and caught the bull by its horns. European Commission, long ago, had instructed its staff to delete the communication apps like Whatsapp, Facebook and even iMessage and make a move to another encrypted app called Signal.

Signal and Telegram are being actively considered by the people. Mr. Elon Musk has been constantly throwing his weight behind Signal and people are sitting up and taking note. This is evident by the fact that, in the last few days, there has been a surge in the download of these two applications.

As regards Facebook, I would only say that it is not the first and will not be the last. There were other social network platforms before it which were quite big but which crumbled under their own weight. Facebook seems to be following the footsteps to the same destination.

CONCLUSION:

When the companies become so big that they do not want to look down and notice their supporting stones - the users/customers - the structure starts to quiver and, ultimately, collapse. Even the Trillion-Dollar company which thought it is invincible is facing a tough time.

The extent of a company’s reach can be only as far as we allow it to be. Some compromises are inevitable but, when a corporate entity, in its arrogance, steps over the thin line, it feels the resistance by the real force and is, ultimately, rendered inconsequential.

We should not be surprised if we become witness to another Goliath falling to the ground.

Siddharth Jain is Co-Founding Partner, PSL Advocates & Solicitors