Possible to identify originators of WhatsApp messages, IIT Madras Professor

Challenging the submissions made so far by the messaging platform, a technical expert from the Indian Institute of Technology (IIT) Madras, yesterday told the Madras High Court that it is possible to add an identification tag to WhatsApp messages, and thereby trace the original sender..The Bench of Justices S Manikumar and Subramonium Prasad was told that it is possible, in a metaphorical sense, to alter the ‘preamble‘ of WhatsApp so that such an identification facility is introduced..Inter alia, the expert also contended that WhatsApp could not claim to be a privacy-centered entity when it is possible for any user to forward messages on the platform regardless of consent..These submissions were made towards the end of the hearing that took place yesterday in a PIL kept pending to navigate ways in which online crime may be curbed with the assistance of social media companies. The social media companies impleaded in the matter include WhatsApp, Facebook, Twitter, Google, and YouTube..Expressing concerns regarding the spread of false messages through forwards and the use of WhatsApp for the perpetration of crimes, the Bench had queried earlier whether it would be possible to trace the original sender of such a message..Issues raised should be tackled at the policy level: Social Media companies, IFF.Appearing for WhatsApp, Senior Advocate Kapil Sibal reasserted that the company itself does not have access to the user content sought for by the LEAs and the original senders of a message cannot be traced (in view of its existing encryption software and privacy policies)..“Therefore, it (WhatsApp) has become a monster which cannot be controlled“, remarked Justice Prasad during the course of Sibal’s submissions..Sibal responded by remarking that everything has the potential to become a monster. .“If I (WhatsApp) knew it (the information sought for by LEAs), I would have given it”, Sibal went on to add..Further, he informed that even when allied issues were raised before the Supreme Court while deliberating on ways to tackle the issue of child porn, WhatsApp was treated on a different footing..This apart, he also emphasised that the issues raised are complex ones which require policy-level intervention. He argued that if the encryption policy of WhatsApp is interfered with, it would have huge commercial and security implications..Appearing for Facebook, Senior Advocate Mukul Rohatgi also chimed in that the issues raised were not simplistic. Inter alia, he submitted that Facebook itself has norms and protocol in place to pull down objectionable content..Rohatgi also pointed out Facebook has a grievance officer in India to address such issues. This measure has not been implemented everywhere in the world, he added. Ultimately, the company is not opposed to ensuring cyber security, Rohatgi remarked. He also contended that the company was extending help wherever it is possible..Senior Counsel Arvind Datar, appearing for WhatsApp, remarked that if the appropriate authorities are already seized of the issue, the courts should not interfere. A similar view has been expressed by all the social media entities appearing in the case i.e. that ideally the issues should be tackled at a policy level following due consultation with the stakeholders..Senior Advocate NL Rajah also appeared for WhatsApp. Twitter was represented by Senior Advocate Sajan Poovayya, whereas YouTube and Google were represented by Senior Advocate PS Raman..Intervenor, Internet Freedom Foundation (IFF), through its director Apar Gupta, has also made allied submissions in response the Common Government report filed last month, concerning the problems faced by LEAs in the investigation of cybercrime. Advocate Suhrith Parthasarathy appeared for IFF..Inter alia, the IFF’s response states,.“…the issues involved in the present case are not only technical and complex in nature, but they require policy determinations and legislative reforms more than judicial intervention… Recommending and enforcing changes to product design of social media companies will require extensive consultation with stakeholders and constant monitoring, and many of these functions may be more suited to an expert regulator…..… Intervention of constitutional courts in issuing any guidelines on the present prayers could potentially impact and restrict fundamental rights of over 600 million Indian internet users.“.Free Speech and Privacy affected if originator tag is added to WhatsApp messages: IFF.In its response, the IFF has also raised concerns over free speech and privacy implications if the proposal to add identification tags to WhatsApp messages is implemented. This proposal was originally made by Dr. V Kamakoti, an IIT Professor. In the response, the IFF argues,.“… any direction that would compel the inclusion of the author’s phone number whenever a message is forwarded would undermine the rights to free speech and privacy, and the harm cause by such a product design change would far outweigh any attendant benefits.”.IFF has also highlighted the significance of the right to communicate anonymously thus..“… right to communicate anonymously is a part of the right to free speech under Article 19 (1)(a) as well as the right to privacy guaranteed under the Indian Constitution, and it is especially important for whistleblowers, activists, journalists and other individuals belonging to marginalised groups. Anonymity permits dissent and it can enrich public discourse by overcoming hierarchical structures present in society which silence individuals based on their caste, class, religion, gender, sexual orientation, etc.”.The need to ensure that there is a platform for protecting the anonymity of the sender of a message was also highlighted by citing the MeToo movement. As noted in the IFF response,.“If these women (who have suffered sexual abuse) had to disclose their identity, they would have been forced to remain silent to avoid social stigma and retaliation by the perpetrator. Empirical studies have also found that victims of sexual abuse are much more likely to engage in supporting seeking behaviour through throwaway accounts that offer greater anonymity.”.Further, it is also pointed out that identification of a phone number is not a perfect method for identification of the sender of the message. This is because the ownership of a number can be temporary. As a result, even an innocent individual could be targeted for a message authored by another who previously owned the number, argues IFF..This apart, it is emphasised that fingerprinting of messages is not the least restrictive method of identifying offenders. As noted in the IFF response,.“Fingerprinting messages with the phone number of the originator is not the least restrictive alternative available to LEAs to identify offenders. Instead, LEAs can follow the trail of messages to trace the author of the message. While this alternative may require more time and effort than Dr V Kamakoti’s proposal, it is certainly viable. For instance, the Delhi Police caught two teachers who had leaked CBSE question papers by following the trail of WhatsApp messages.”.Surveillance Law Reform required for speedier access to content stored by US-based Social Media Companies: IFF.The IFF has highlighted that it may be possible for LEAs to gain easier access to data stored by US-based companies if India were to amend its surveillance law to incorporate more judicial oversight..To this end, India could execute an agreement with the US government under the US Clarifying Lawful Overseas Use of Data Act (CLOUD Act) which would then allow the LEAs to directly send content data requests to US based social media companies without going through US authorities..However, at present India is ineligible as a CLOUD Act partner, as the Act requires that the surveillance orders passed in partner countries should be amenable to review or oversight by a court, judge, magistrate, or such other independent authority. As stated in the IFF response,.“India is currently ineligible to be a partner country under the CLOUD Act because interception orders passed under Section 69 of the IT Act are not subject to any judicial oversight, and all surveillance related orders are passed and reviewed by officials of the executive branch. Unless there is inter-branch oversight, any review of interception orders by the executive branch which is also entrusted with the task of issuing these orders cannot be termed as ‘independent’.”.Directive to take down objectionable content will lead to overcompliance and hasty censorship, IFF.Another specific objection raised by the IFF in its response pertains to the Government’s plea for a Court direction so that social media companies are mandated to take down objectionable content on request within a 24-hour deadline. The IFF has contended that such a strict timeline will undermine freedom of speech and lead to hasty censorship. It further contends,.“Imposing an onerous 24-hour deadline without legislative intervention is inadvisable because it amounts to creation of a new substantive offence.“.The IFF argues that studies have shown that social media companies tend to over comply and take down even legitimate content on request by private individuals. It has raised apprehension that this problem may be exacerbated social media companies are now made to mandatorily take down content within 24 hours by the LEAs. As noted in their response,.“… a 24-hour deadline will also incentivise social media platforms to err on the side of caution and this may plausibly lead to take down of legitimate content with a purported view of avoiding liability..… the Intervenor Trust fears that over compliance will be even greater in cases of requests received from LEAs.“.The matter will be taken up next on August 21 and 22. The Court has also directed the report with Dr Kamakoti’s technical inputs be filed before the Court..The response filed by the Internet Freedom Foundation may be accessed here.