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On twin petitions by WhatsApp and Facebook challenging the Constitutional validity of the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on the grounds that the Rules requirement of identifying “first originator of information” on their end-to-end encrypted messaging services is violative of Articles 21, 19 and 14, the Delhi High Court on Friday asked the Centre to furnish a reply.
A Division Bench comprising Chief Justice DN Patel and Justice Jyoti Singh issued notices asking the Centre, through the Ministry of Electronics and Information Technology, to file a reply on the petitions as well as the application for stay on the implementation of the Rules. The court listed the matter for further hearing on October 22.
The Centre’s plea for adjournment was opposed by senior advocates Harish Salve and Mukul Rohatgi, who appeared for WhatsApp and Facebook, respectively.
Rule 4(2) states that a significant social media intermediary, which provides services primarily in the nature of messaging, shall enable the identification of the first originator of the information.
Freedom of speech
WhatsApp argued that it enables a wide variety of users to exercise their right to freedom of speech and expression without fear of retaliation or, in the case of medical consultation between doctors and patients, the right to privacy, through end-to-end encryption which ensures that each communication can only be decrypted by the recipient and not even the intermediary, that is, WhatsApp, can read or listen to the communication or determine their content.
“Since its founding, the petitioner (WhatsApp) has been committed to providing a private and secure place where users can freely communicate without fear of third parties reading or listening to their most private thoughts. Consistent with that commitment, the petitioner has spent years building and implementing a state-of-the-art end-to-end encrypted messaging service that allows people to communicate privately and securely,” said WhatsApp. It said the Rules requiring WhatsApp to enable identification of the first originator in India puts at risk journalists for investigating stories that may be unpopular, civil or political activists and privileged communication between attorneys and clients and doctors with their patients.
It said that tracing the “first originator” undermines the use of encryption technology altogether. “Placing the obligation of tracing on an intermediary creates a restrictive regime that seeks to dictate the underlying technology that undermines globally recognised best practices for preserving privacy and security of communication, in particular the deployment of robust encryption tools,” said the WhatsApp petition.
Facebook, the parent company of WhatsApp, argued that the Rules requirement effectively mean that it would have to set up a mechanism to identify the first originator of every end-to-end encrypted communication sent on their services such as Facebook Secret Conversations feature as the company has no way of knowing precisely which communication the government seeks to identify.
Facebook argued that the Rule 4(2) is ultra vires of the IT Act as the Act does not vest the Government with any power to impose a duty on the intermediaries to build mechanisms that would allow identification of the “first originator” of every communication on their platforms and certainly not if it requires breaking end-to-end encryption.
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