No fundamental right is absolute, says IT Ministry.
Terming WhatsApp’s last moment challenge to the new intermediary guidelines as an “unfortunate attempt” to prevent them coming into effect, the Centre said on Wednesday that established judicial dictum is that no fundamental right, including the Right to Privacy, is absolute and is subject to reasonable restrictions.
“The requirements in the Intermediary Guidelines pertaining to the first originator of information are an example of such a reasonable restriction,” said the government reacting to a legal complaint filed by WhatsApp against the new IT rules. It, however, stressed that it respected the right to privacy and had no intention of violating it while seeking details on originators of certain messages.
WhatsApp, however, has said a government that chooses to mandate traceability is effectively mandating a new form of mass surveillance. “To comply, messaging services would have to keep giant databases of every message you send, or add a permanent identity stamp — like a fingerprint — to private messages with friends, family, colleagues, doctors, and businesses.”
IT Minister Ravi Shankar Prasad said that while the government was committed to ensuring the right to privacy of all citizens, it was also responsible for maintaining law and order and ensuring national security. “None of the measures proposed by India will impact the normal functioning of WhatsApp in any manner whatsoever, and for the common users, there will be no impact,” he added.
Comment | WhatsApp and its dubious claims
“As a significant social media intermediary, WhatsApp seeks safe harbour protection as per the provisions of the Information Technology Act. However, in a befuddling act, they seek to avoid responsibility and refuse to enact the very steps which permit them a safe harbour provision,” the government said.
WhatsApp has said that traceability requires private messaging services like WhatsApp to keep track of who-said-what and who-shared-what for billions of messages sent every day. It requires messaging services to store information that can be used to ascertain the content of people’s messages, thereby breaking the very guarantees that end-to-end encryption provides. “In order to trace even one message, services would have to trace every message,” it said in a FAQ.
The company added that traceability forces private companies to turn over the names of people who shared something even if they did not create it, shared it out of concern, or sent it to check its accuracy. “Through such an approach, innocent people could get caught up in investigations, or even go to jail, for sharing content that later becomes problematic in the eyes of a government, even if they did not mean any harm by sharing it in the first place,” it said.
The company said the threat that anything someone wrote could be traced back to them took away people’s privacy and would have a “chilling effect” on what people say even in private settings, violating universally recognised principles of free expression and human rights.
Mr. Prasad said the entire debate on whether encryption would be maintained or not was misplaced. “Whether Right to Privacy is ensured through using encryption technology or some other technology is entirely the purview of the social media intermediary. The Government of India is committed to ensuring the Right of Privacy to all its citizens as well as have the means and the information necessary to ensure public order and maintain national security.”
It was WhatsApp’s responsibility to find a technical solution, whether through encryption or otherwise, Mr Prasad added.
The government also highlighted that the rules had been framed after consultations with various stakeholders and social media intermediaries, including WhatsApp. “After October 2018, no specific objection has been made by WhatsApp to the Government of India in writing relating to the requirement to trace the first originator in relation to serious offences. They have generally sought time to extend the time for enforcement of guidelines, but did not make any formal reference that traceability is not possible,” the official statement said.
The government and WhatsApp have been at loggerheads with each other over the issue of tracing the originator of the message for over two years now.
The Centre stressed that the originator of information would only be traced in a scenario where other remedies had proven to be ineffective, making it a last resort measure. “It is very important to note that such an order, to trace first originator, under Rule 4(2) of the said guidelines shall be passed only for the purposes of prevention, investigation, punishment etc. of inter alia an offence relating to sovereignty, integrity and security of India, public order incitement to an offence relating to rape, sexually explicit material or child sexual abuse material punishable with imprisonment for not less than five years.”
According to the government, it was in the public interest to detect and punish those who started the mischief leading to such a crime. “We cannot deny that in cases of mob lynching and riots etc. repeated WhatsApp messages are circulated and recirculated whose content are already in public domain,” it pointed out.
WhatsApp’s refusal to comply with the guidelines is a clear act of defiance of a measure “whose intent can certainly not be doubted”, it said.
The U.K., the U.S., Australia, New Zealand and Canada have previously asked social media firms to allow for legal interception, it said. “What India is asking for is significantly much less than what some of the other countries have demanded.
“Therefore, WhatsApp’s attempt to portray the Intermediary Guidelines of India as contrary to the right to privacy is misguided…It would be foolhardy to doubt the objective behind Rule 4(2) of the Intermediary Guidelines, which aims to protect law and order,” it added.