Making messages traceable is against privacy, free speech; journalists and activists could be at risk: WhatsApp to Delhi High Court

WhatsApp LLC has told the Delhi High Court that making messages on its end-to-end encrypted platform traceable in terms of Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 would unreasonably infringe upon individuals' fundamental right to freedom of speech and expression as well as their right to privacy (WhatsApp LLC v. Union of India)..WhatsApp has apprehended that such a system could put journalists at risk of retaliation for investigating issues that may be unpopular. Moreover, civil or political activists could face the heat for discussing certain rights and criticizing or advocating for politicians or policies. .Clients and attorneys could become reluctant to share confidential information for fear that the privacy and security of their communications is no longer ensured, WhatsApp has said. ."With end-to-end encryption, users feel safe to communicate freely...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, 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," the petition reads. .In its challenge to Rule 4(2) of the Intermediary Guidelines, which requires intermediary platforms to make provisions for “identification of the first originator of the information", WhatsApp has argued that the provision is manifestly arbitrary and disproportionate as the harm it causes far outweigh its purported benefits..Forcing the platform to build the ability to identify the first originator of information in India would infringe upon the privacy of every individual who uses WhatsApp in India, the company has argued. It is further contended that the Rule falls foul of the three-fold test of legality, necessity and proportionality laid down by the Supreme Court in KS Puttaswamy v. Union of India. .It is further argued that the Rule violates Sections 69A and 79(2) of the Information Technology Act, which defines the scope of the Centre's authority. .WhatsApp has explained that although Section 69A(2) inter alia empowers the Central government to prescribe procedures to block access, determination of the first originator of information in India on end-to-end encrypted platforms is in excess of that power. .Similarly, Section 79, which provides a safe harbour immunity to intermediaries, also does not enable the authorities to impose a requirement on identification of the first originator of information in India on end-to-end encrypted messaging services, WhatsApp has said. ."Section 79 only allows Respondent to prescribe the “due diligence” guidelines that intermediaries must observe to maintain their exemption from liability for third-party content on their respective platforms. However, Impugned Rule 4(2) seeks to impose obligations that fall far outside “due diligence”, as it forces fundamental alterations to WhatsApp by breaking end-to-end encryption and changing the fundamental nature of the service that people love and use today in India and across more than 100 countries," WhatsApp stated..The petition highlighted that no other country compels intermediaries to change their systems to enable the identification of the first originator of information on end-to-end encrypted messaging services..WhatsApp has further contended that the mandate of Rule 4(2) violates "data minimisation" principles that dictate that, generally, an online service should only collect and store user data that is essential to provide its service in order to minimize the risks of unauthorized entities accessing that data.."To the extent the Impugned Rule requires intermediaries like Petitioner to store additional data for every message sent in India on its platform, it is contrary to data minimization principles. Such a requirement would also be particularly disproportionate as the Impugned Rule does not prescribe a time limit, forcing Petitioner to store this additional data even years after the message was sent," the petition stated..Imposing criminal liability for non-compliance of a Rule that is unconstitutional is also illegal, WhatsApp has said. .WhatsApp moves Delhi High Court against IT Intermediary Rules 2021 mandating it to trace first originator of information