Editorial: Address privacy concerns

The governments must strike a fair balance between privacy and protecting national security

Privacy, an inviolable right of the citizens, is of paramount importance. So is the need for protecting national security and public order. The challenge before the governments is how to strike a fair balance between the two. The ongoing stand-off between the Centre and the popular messaging platform WhatsApp over the traceability provision in the IT Rules, 2021, highlights this challenge. The social media giant recently threatened to exit India if it is forced to break encryption of messages and calls on its platform. This warning may reflect a maximalist position of the company but what it conveys is a widespread concern over the possible infringement of privacy by the overarching government agencies. According to Section 4 (2) of the IT Rules, 2021, online messaging companies will be required to divulge the identity of the “first generator of information” when authorities demand it. The order for the requirement, generally referred to as traceability, can be passed either by a court or the government. It is argued by privacy activists that since the messages on WhatsApp are end-to-end encrypted, compliance to the new regulation will mean breaking the encryption for receivers, as well as “originators”, of messages. The new traceability and filtering requirements may put an end to end-to-end encryption and thereby undermine the right to privacy.

In an end-to-end encryption app like WhatsApp, Telegram or Signal, any message sent is encrypted on the device before flowing through the internet to the receiver, on whose device it is decrypted. This way only the sender and the receiver can read the messages. While this is important from a user privacy perspective, government authorities and agencies in several jurisdictions across the world have, from time to time, sought a backdoor into this encryption for law enforcement purposes. In February 2021, the Indian government introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules. These rules mandated ‘significant’ social media intermediaries such as WhatsApp, X (formerly Twitter), Facebook and Instagram to enable traceability for law enforcement purposes. Any social media intermediary having more than 5 million users in India is tagged as ‘significant’ for the purpose of these rules. The company moved the Delhi High Court challenging the government rules. It argued that the requirement to disclose user data is unconstitutional and against the fundamental right to privacy. The government, on the other hand, argued that non-compliance with these rules could hinder law enforcement agencies’ ability to track fake messages, potentially leading to societal unrest. Neither the social media companies nor the government can afford to prolong the standoff at the cost of the interests of millions of users. A wider debate and a more vigorous engagement are needed to fix the encryption and other operational issues without compromising the privacy of the users and also to ensure compliance with revised guidelines.

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