Will cease to exist in India if made to break encryption: WhatsApp tells HC

WhatsApp told the Delhi High Court on Thursday that if it is made to break encryption of messages, then the social message platform would exit India.

“As a platform, we are saying, if we are told to break encryption, then WhatsApp goes,” counsel for the platform told the bench of acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora.

WhatsApp said that people use its platform because end-to-end messages are encrypted, ensuring privacy. End-to-end encryption is a private communication system in which only communicating users can participate.

The court is hearing petitions filed by WhatsApp LLC and its parent company Facebook Inc (now Meta), challenging the 2021 Information Technology (IT) rules for social media intermediaries requiring the messaging app to trace chats and make provisions to identify the first originator of information, for hearing on August 14.

Rule 4(2) of IT Rules says that a significant social media intermediary that provides services like messaging shall allow the identification of the ‘the first originator’ of a message when an order to this effect is passed by a court or by the competent authority.

WhatsApp told the court that the provision in question of IT Rules would require WhatsApp to store millions and millions of messages for a number of years, a requirement that exists nowhere else in the world.

“We will have to keep a complete chain and we don’t know which messages will be asked to be decrypted. It means millions and millions of messages will have to be stored for a number of years,” the platform told the court.

 

The lawyer, appearing for the platform, said the Rule under challenge goes beyond the parent Information Technology Act, which does not provide for breaking of encryption.

The bench, observing that the matter would have to be argued by the parties, asked him if the issue had been considered in any other country.

“There is no such rule anywhere else in the world. Not even in Brazil,” he said.

Meanwhile, the central government’s standing counsel said the idea behind the Rule is to trace the originator of the message.

He said there has to be some mechanism to trace the messages because that is the need of the hour and that WhatsApp has faced some very difficult questions before the United States Congress.

The Centre has also said that if a platform does not have the means to trace the first originator without breaking the encryption then it is the platform which “ought to develop such a mechanism” in larger public duty.