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The Significance of WhatsApp's Lawsuit Against the Indian Government Over the New Social Media Rules

Jun 3, 2021 8:53 AM 5 min read

WhatsApp is taking the Indian Government to court.

The point of contention is the new regulatory policy for social media companies. The IT Rules, 2021 were introduced in February to enforce sweeping changes into the regulation of social media, OTT and digital media companies.

The Government claimed the changes were necessary to stem the tide of fake news, child porn, revenge porn and other objectionable content. But tech companies cried foul, saying the policy enabled surveillance, encouraged self-censorship and violated the Right to Privacy.

The Crux of the Matter

We’ve discussed the Rules before, but here’s a gist of what this new policy entails for social media firms (particularly those with more than 5 million users).

  • First, these companies would have to put in place a grievance redressal and compliance mechanism.
  • Second, they would have to submit monthly reports on complaints received from users and action taken on the same.
  • And third, messaging apps would have to give up the first originator of "mischievous" messages whenever demanded by the Government.


Tirades on Traceability

It’s the third point regarding traceability in particular that has become a lightning rod. Many messaging apps like WhatsApp and Signal are end-to-end encrypted. This means the company cannot trace or save users’ messages (unless a user marks a message as spam, in which case it gets unencrypted).

The new IT Rules would force such platforms to dilute end-to-end encryption so that a flagged message can be traced back to its originator. This is a big deal for companies like WhatsApp, which might have to upend the entire architecture of their platforms to comply.


Law Law Land

Last week, just as the three-month deadline for the implementation of the IT Rules was drawing to a close, WhatsApp sued the Government. The 224-page lawsuit filed in the Delhi High Court now promises to be the most significant privacy case in years.

WhatsApp’s arguments can be boiled down to two main points.

  • One, the company argues that the new rules don’t meet the proportionality test. In the 2017 Right to Privacy verdict, the Supreme Court allowed for reasonable restrictions on the right so long as they were legitimate and proportional i.e. they were the least restrictive option available. WhatsApp contends that asking to compromise billions of texts from 530 million+ Indian users just to trace a handful of allegedly controversial messages is not a proportionate response.
  • Second - and this is where it gets ironic - WhatsApp says the rules make citizens susceptible to arbitrary state action, censorship and retribution. That as a violation of the Right to Privacy, they have no legal sanction.

So, this is where we’re at. A social media policy so problematic that WhatsApp - a subsidiary of snooper-in-chief Facebook - went to court claiming it was safeguarding user privacy.


Global Precedence

Traceability is a touchy topic across jurisdictions. But the bottom line is that traceability and end-to-end encryption cannot coexist.

India’s law, however, goes many steps further in that it forces messaging apps to re-architect their platforms altogether so as to cater to law enforcement’s demands.

In this way, the IT Rules are similar to a law passed by Brazil’s Senate last year. That law - colloquially called the “Fake News” Bill - mandated social media firms to store “massively forwarded” messages for up to three months. WhatsApp’s relations with the Brazilian government have soured spectacularly since then, with the platform even facing suspensions.

All said and done, viewing the WhatsApp vs GoI clash solely through the traceability lens would be akin to missing the forest for the trees. Look at the larger picture, and one could argue that China and not Brazil or Australia was probably the inspiration behind the new policy.


A Law with Chinese Characteristics

India’s larger northern neighbour is frighteningly efficient when it comes to internet censorship. The combination of legislative actions and technologies that enforce China’s version of the internet is called the Great Firewall.

Beijing justifies its suffocating actions using oh-so-familiar arguments such as the need to protect its people from “objectionable” content, to curb fake news, to boost domestic tech companies, and to ensure law and order. One of the Communist Party’s go-to defences is that foreign companies should adhere to Chinese laws if they want to conduct business in China. Even if this involves not-so-holy things like censorship, tracking those who don’t toe the line, and quelling dissent.

New Delhi’s beef with social media companies isn’t new. But it blossomed only last year when the latter refused (temporarily) to block accounts, hashtags and posts related to the farmer protests. In a chilling escalation, the Government threatened to jail Twitter employees in India unless its demands were met. Earlier this year, a Group of Ministers was formed to “neutralise the people who are writing against the Government without facts and [setting] false narratives”. And last week, raids were conducted on Twitter’s Delhi and Gurugram offices after the platform labelled a misleading tweet by a Government official as “manipulated media”.

Viewed through the larger lens of recent developments, a pattern emerges. Then, the IT Rules seem less like an aggressive measure to rein in Big Tech and more like a sinister ploy by the Government to muzzle speech it doesn’t like by people it detests.

Now, India is not China, and the IT Rules are not the Great Firewall. But the overlaps are concerning nonetheless. In the end, assuming the judiciary rules in favour of the Rules and expecting more such restrictive policies in the near-term, the world’s second-largest internet economy may be relegated to somewhere between a Chinese-styled Great Firewall and a Western-modelled “free” internet.


Atma Nirbhar All the Time

Following Twitter non-compliance amid the farmer protests last year, Government officials began publicising desi alternatives such as Koo. The spectre of elected officials marketing a private company is odd, but it sat within the larger agenda of Atma Nirbhar Bharat.

India’s homegrown social media companies stand to gain if WhatsApp, Facebook or Twitter exit India (improbable) or face difficulties continuing operations. To this end, the IT Rules work in their favour, even if they ask these platforms to keep tabs on their users. These companies might very well abet some degree of state censorship if it means growing their businesses.

Again, this is similar to China’s homegrown tech giants, all of which actively engage in censorship activities that in any democracy would be downright criminal.


The Bottom Line

It goes without saying that tech companies don’t have a clean slate. They have all gone to great lengths to exploit privacy loopholes and monetise consumers. WhatsApp is even in the middle of forcing through a privacy update that could jeopardise user data.

Big Tech’s shenanigans must be fought tooth and nail. But big government excesses can be much, much more dangerous.

In the end, one fact remains striking. Such aggressive interventionism by a party that describes itself as a champion of “minimum government” is amusingly hypocritical at best and worryingly undemocratic at worst.


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