'Mandating a new form of mass surveillance': WhatsApp sues government, calls IT rules unconstitutional

WhatsApp has filed a legal complaint against the Indian government seeking to block regulations of the new IT rules that come into force today, Reuters reported.

The lawsuit asked the Delhi High Court to declare that one of the rules, which come under the the IT Intermediary Guidelines and Digital Media Ethics Code Rules 2021, is a violation of privacy rights in India’s constitution as it asks social media companies to identify the “first originator of information” when authorities demand to know. The new rules could thus compel WhatsApp to break privacy protection.

WhatsApp said that since messages are end-to-end encrypted, it would have to break encryption for receivers as well as originators of messages, even though the law required it to reveal only the people accused of wrongdoing. On an FAQ page on its website, WhatsApp said that traceability breaks end-to-end encryption and would “undermine the privacy” of people who communicate digitally. This could have a “chilling effect” on what people say and violate universally recognised principles of free expression and human rights, WhatsApp said.

The company's complaint cites the Supreme Court's Puttaswamy judgement from 2017, where it upheld privacy as a fundamental right. WhatsApp’s lawsuit was filed as the 90-day period given to social media companies to comply with the new rules comes to an end.

“There is no way to predict which message a government would want to investigate in the future. In doing so, a government that chooses to mandate traceability is effectively mandating a new form of mass surveillance," the complaint said. "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. Companies would be collecting more information about their users at a time when people want companies to have less information about them.”

Digital news organisations have already challenged the new IT rules. In February, DigiPub News India Foundation wrote to I&B minister Prakash Javadekar and electronics and IT minister Ravi Shankar Prasad, arguing that the rules give the government vast power that run counter to the principle of freedom of expression enshrined in the Indian constitution.

Digipub had also written to Javadekar in December, “requesting to be part of a consultation process” regarding the rules but never received a reply.