The Delhi High Court on Friday sought the Centre’s response to petitions filed by WhatsApp and Facebook challenging the Information Technology Rules 2021, specifically the “traceability” provision, which allows the messaging app to identify the originator of any message.
A bench of Chief Justice D.N. Patel and Justice Jyoti Singh issued notices asking the Centre, through the ministry of electronics and IT, to file a reply on the petition as well as the application for stay on the rules’ implementation. The court will hear the matter next on 22 October.
The government’s counsel sought an adjournment on the grounds that the main counsel was not available. This was opposed by senior advocates Harish Salve and Mukul Rohatgi, appearing for WhatsApp and Facebook, respectively, who said the Centre should at least file its reply.
WhatsApp said the traceability provision would violate its end-to-end encryption policy and the right to privacy under Indian law, and reveal the identity of the message recipient.
It urged the high court to declare Rule 4(2) of the intermediary rules as unconstitutional, ultra vires to the IT Act and illegal, and sought that no criminal liability be imposed on it for any alleged non-compliance with Rule 4(2), which requires enabling the identification of the first originator of information.
It has also contended that “traceability would not be effective in finding the originator of a particular message because people commonly see content on websites or social media platforms and then copy and paste them into chats”. It said that it would also be impossible to understand the context of how it was originally shared.
WhatsApp said it does not believe traceability can be imposed in a way that cannot be spoofed or modified, leading to new ways for people to be framed for things they did not say or do. It added that such massive data collection makes messaging platforms less secure by opening up more avenues for hacking.
The plea said the traceability requirement forces it to break end-to-end encryption on its messaging service, as well as the privacy principles underlying it, and infringes upon the fundamental rights to privacy and free speech of millions using WhatsApp to communicate privately and securely.
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