After the Facebook-owned instant messaging applicationWhatsApp has lodged a petition in Delhi High Court over the latest ‘Intermediaryguidelines’, the GoI has countered the messaging app.
Clearing the air over the privacy violation, Electronics& IT Minister Ravi Shankar Prasad has assured that the government is committedto the right to privacy, but simultaneously it also has to maintain law andorder to ensure national security.
"The Government of India is committed ensuring theRight of Privacy to all its citizens but at the same time it is also theresponsibility of the government to maintain law and order and ensure nationalsecurity," an official statement quoted the IT Minister Prasad as saying.
Facebook-owned instant messenger WhatsApp, in a petitionin Delhi High Court, said that enabling identification of the first originatorof information on its platform in India puts end-to-end encryption and itsbenefits at risk, as it urged the court to pass direction to declare thisrequirement ultra vires the IT Act.
The GoI statement said that the government respects theright of privacy and has no intention to violate it when WhatsApp is requiredto disclose the origin of a particular message.
It, however, added that as per all established judicialdictum, no fundamental right, including the right to privacy, is absolute andit is subject to reasonable restrictions.
"The requirements in the Intermediary Guidelinespertaining to the first originator of information is an example of such areasonable restriction," it said.
Such requirements are only in case when the message isrequired for prevention, investigation or punishment of "very seriousoffences" related to the sovereignty and integrity of India, the securityof the State, friendly relations with foreign states, or public order, or ofincitement to an offence relating to the above or in relation with rape,sexually explicit material or child sexual abuse material, it said.
Moreover, such information can only be sought as per aprocess sanctioned by the law thereby incorporating sufficient legalsafeguards.
Prasad also assured that none of the measures proposed byIndia will impact the normal functioning of WhatsApp in any manner whatsoeverand for the common users, there will be no impact.
The minister noted that it is in the public interest that whostarted the mischief leading to such a crime must be detected and punished.
"We cannot deny as to how in cases of mob lynchingand riots etc. repeated WhatsApp messages are circulated and recirculated whosecontent is already in the public domain. Hence the role of who originated is veryimportant," it added.
The minister also said: "The entire debate onwhether encryption would be maintained or not is misplaced. Whether Right toPrivacy is ensured through using encryption technology or some other technologyis entirely the purview of the social media intermediary."
Prasad added that the Government of India is committed toensuring the Right of Privacy to all its citizens as well as have the means and theinformation necessary to ensure public order and maintain national security. Itis WhatsApp's responsibility to find a technical solution, whether throughencryption or otherwise, that both happen, he said.
"As a significant social media intermediary,WhatsApp seeks safe harbour protection as per the provisions of the InformationTechnology Act. However, in a befuddling act, they seek to avoid responsibilityand refuse to enact the very steps which permit them a safe harbourprovision," he said.
The minister who also holds the law portfolio said thatthe rules enacted by the Indian government are not rules enacted in isolation buthave global precedence.
In July 2019, the governments of the United Kingdom,United States, Australia, New Zealand and Canada issued a communique,concluding that: "tech companies should include mechanisms in the designof their encrypted products and services whereby governments, acting withappropriate legal authority can gain access to data in a readable and usableformat."
Further, he noted that Brazilian law enforcement islooking for WhatsApp to provide suspects' IP addresses, customer information,geo-location data and physical messages.'
"What India is asking for is significantly much lessthan what some of the other countries have demanded."
Therefore, he said that WhatsApp's attempt to portray theIntermediary Guidelines of India as contrary to the right to privacy ismisguided.
On the contrary in India, privacy is a fundamental rightsubject to reasonable restrictions, Prasad said, adding that Rule 4(2) of theGuidelines is an example of such a reasonable restriction.
It would be foolhardy to doubt the objective behind Rule4(2) of the Intermediary Guidelines, which aims to protect law and order