WhatsApp received a firm response from the government on Wednesday about the messaging application, which did not comply with the provisions of the Intermediary Rules and accused it of infringing on the privacy of users. The government made it clear that even if instant messaging apps are required to disclose the source of a particular message, it has no intention of infringing on the privacy of WhatsApp users, adding that the right to privacy is not absolute and is subject to “reasonable restrictions”.

The Ministry of Electronics and Information Technology (MeitY) said in a press statement that the requirement to determine the publisher of the first information is only to prevent, investigate or punish those involved in crimes. The ministry also quoted Union Minister Ravi Shankar Prasad (Ravi Shankar Prasad) as saying that the government is committed to ensuring the privacy of all citizens.

However, the statement said that it is undeniable that in the case of mob lynchings and riots, repeated messages were distributed and redistributed via WhatsApp. The ministry said: “Therefore, the role of the originator is very important.”

The Ministry of Foreign Affairs pointed out that WhatsApp is trying to formulate a privacy policy to allow it to share user data with its parent company Facebook for marketing and advertising purposes.

“As an important social media intermediary, WhatsApp seeks safe harbor protection in accordance with the provisions of the Information Technology Act. However, in the confusing behavior, they try to avoid liability and refuse to take steps that allow them to provide safe harbor regulations.”

MeitY’s statement arrived hours after WhatsApp sued the government for the terms of its “Intermediary Rules,” and the company said it violated privacy rights.

WhatsApp said in its statement: “Requirement of messaging apps to’track’ chat is equivalent to requiring us to keep fingerprints on every message sent on WhatsApp, which will break end-to-end encryption and fundamentally undermine people’s Privacy.” Statement.

The provisions of the “Intermediary Rules” will take effect from May 26 (Wednesday) on all social media platforms operating in the country with at least 5 million users. Interestingly, Facebook confirmed on Tuesday that it is planning to comply with the law and is in discussions with the government.

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The following is the full text of the government’s response:

When respecting WhatsApp’s request to disclose the source of a particular message, the government respects the right to privacy and has no intention of infringing on it

Only when information is needed to prevent, investigate or punish India’s sovereignty and integrity, national security, friendly relations with foreign countries or public order or incitement related to the above or related to rape, sexually explicit material or child sexual abuse material crime

Privacy is a basic right

  • The Indian government recognizes that the “right to privacy” is a basic right and is committed to ensuring that its citizens enjoy the same rights.
  • On this issue, Union Minister Shri Ravi Shankar Prasad said: “The Indian government is committed to ensuring the privacy of all citizens, but at the same time, the government is also responsible for maintaining law and order and ensuring national security.”
  • Indian Minister Shri Ravi Shankar Prasad also stated: “Any measures proposed by India will not affect the normal operation of WhatsApp in any way, and for ordinary users, there will be no influences”
  • According to all established judicial regulations, the basic rights, including the right to privacy, are not absolute and are subject to reasonable restrictions. The requirements related to the publisher of the first information in the Intermediary Guidelines are an example of such reasonable restrictions.
  • If Article 4(2) of the Intermediary Guidelines is reviewed through the proportionality test, the test will also be satisfied. The basis of this test is whether there are alternative therapies that are less effective. According to the Intermediary Guidelines, the original source of information can only be traced if other remedial measures prove to be ineffective. This is the last resort. In addition, such information can only be sought in accordance with legally recognized procedures, so as to include adequate legal protection.

Comply with the public interest

  • It is very important that, in accordance with Article 4(2) of the above guidelines, the order to trace the first initiator should be passed only for the purpose of prevention, investigation, punishment, etc., especially for the purpose of crimes related to sovereignty. India The integrity and safety of the public order inciting crimes related to rape, sexually explicit material or child sexual abuse material shall be punishable by at least five years’ imprisonment.
  • In the public interest, it is necessary to investigate and punish the hoaxes that lead to such crimes. We cannot deny how to spread and re-distribute repeated WhatsApp messages whose content has been in the public domain in the event of mob lynchings and riots. Therefore, the role of the originator is very important.

Land law

  • Article 4, paragraph 2, of the Intermediary Guidelines is not an isolated measure. After consultation with various stakeholders and social media intermediaries (including but not limited to WhatsApp), the rules were formulated.
  • After October 2018, WhatsApp did not raise any specific objections to the Indian government in writing. The request involved a request to track down the first initiator related to a serious crime. They usually seek time to extend the implementation time of the code, but there is no formal mention of the inability to trace it back.
  • Although there is enough time and opportunity during the consultation process and after the regulations are enacted, the challenge that WhatsApp faces at the last moment is an unfortunate attempt to prevent the latter from taking effect.
  • Any operations carried out in India shall comply with the laws of that country. WhatsApp’s refusal to comply with the guidelines is clearly an absolute contempt for the intent of the measure, which is undoubtedly unquestionable.
  • On the one hand, WhatsApp seeks to implement a privacy policy in which it will share data of all its users with its parent company Facebook for marketing and advertising purposes.
  • On the other hand, WhatsApp has tried its best to refuse to formulate a “Middleman’s Guide”, which is essential for maintaining law and order and curbing the threat of fake news.
  • WhatsApp defended its eligibility to refuse to formulate the Intermediary Guidelines, which specifically stipulated the exception of end-to-end encryption for messages on the platform.
  • It is worth noting that for every important social media intermediary, the rules for tracking the first source of information are mandatory, regardless of how it operates.
  • Minister Shri Ravi Shankar Prasad said: “The entire debate on whether to retain encryption is misplaced. It is the right of social media intermediaries to ensure privacy by using encryption technology or some other technology. The Indian government is committed to ensuring the security of all citizens. Privacy, and have the means and information needed to ensure public order and maintain national security. Whether through encryption or other means, WhatsApp has the responsibility to find a technical solution.”
  • As an important social media intermediary, WhatsApp seeks safe harbor protection in accordance with the provisions of the Information Technology Law. However, in their bewildering behavior, they tried to avoid liability and refused to enact regulations that would allow them to provide a safe haven.

International first

  • The rules formulated by the Indian government out of the public interest are not rules formulated in isolation, but rules with global priority.
  • July 2019[i], The governments of the United Kingdom, the United States, Australia, New Zealand and Canada issued a communiqué stating: “Technology companies should include some mechanisms in the design of their encryption products and services so that the government can obtain them in a readable and Access data in available formats.”
  • Brazilian law enforcement[ii] It is looking for WhatsApp to provide the suspect’s IP address, customer information, geographic location data and physical messages. “
  • India’s requirements are much lower than those of some other countries.
  • Therefore, WhatsApp’s attempt to portray India’s “Intermediate Guidelines” as an approach that runs counter to the right to privacy is wrong.
  • On the contrary, in India, privacy is a basic right that is reasonably restricted. Article 4(2) of the Guidelines is an example of such a reasonable restriction.
  • It is foolish to doubt the goal behind Rule 4(2) of the Intermediate Guide to protect law and order.
  • All adequate protection measures have also been considered because it is clearly stated that not anyone can trace the first source of information. However, this can only be achieved through a legally approved process. In addition, only if other remedial measures are ineffective, they will be taken as the last measure.

Will WhatsApp’s new privacy policy end your privacy? We discussed it on the gadget 360 podcast Orbital. Orbital is available for Apple Podcast, Google Podcast, Spotify and wherever you get podcasts.