Govt says WhatsApp doesn’t have right to challenge Indian laws

The government on Friday filed an affidavit in the Delhi High Court saying that WhatsApp cannot challenge the constitutionality of Indian laws as it is a foreign entity and does not have a place of business in India.

WhatsApp had filed a lawsuit in the Delhi High Court in May against the Indian government seeking to block the traceability clause of Indian IT (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021 that requires social media platforms with more than 5 million users to locate “the first originator of the information”, if required, by authorities.

The government affidavit argues that WhatsApp, being a foreign company, cannot avail fundamental rights under Article 19 and 21 of the constitution, invoke the jurisdiction of the court and or challenge the constitutionality of an Indian law.

The government’s affidavit, filed through the Ministry of Electronics and Information Technology and reviewed by Business Standard, says that “the constitutionality of a provision of law cannot be challenged by a foreign commercial entity on the ground of it being violative of Article 19 rights”. It goes on to add, “The theory of a representative action is not applicable in the facts of the case, there is no fundamental right to anonymity under Part III of the constitution.”

The affidavit contended that the traceability requirement does not need to break end-to-end encryption and is the least intrusive means to identify the originator of information. It said that a mere discomfort or reluctance on Facebook or WhatsApp’s part to modify its technology to comply with a legal requirement cannot be a basis to declare an otherwise valid law invalid. The government has also cited Prof. Kamakoti’s proposal, previously considered in the previous traceability petitions before the Madras High Court, as a way to implement traceability without breaking e2ee.

“Requiring messaging apps to “trace” chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermines people’s right to privacy,” a WhatsApp spokesperson had told Business Standard in May.

WhatsApp, which is owned by Facebook, has said before that it will not break encryption as it undermines the privacy of its users. India is WhatsApp’s largest market with over 400 million users.

“Traceability” violates user privacy and “by requiring private messaging services like WhatsApp to keep track of who-said-what and who-shared-what for billions of messages sent every day. Traceability requires messaging services to store information that can be used to ascertain the content of people’s messages, thereby breaking the very guarantees that end-to-end encryption provides.

In order to trace even one message, services would have to trace every message,” said WhatsApp earlier in a blog explaining why it opposes traceability.

The government added it in affidavit that WhatsApp’s petitions must be dismissed as (i) MeitY does not lack legislative competence to enact the IT Rules; (ii) the Supreme Court in the Prajwala case (where WA and FB are parties) directed the government to identify persons who create/circulate CEI/RGR and; (iii) the Rule aims at a legitimate state interest which is to curb fake news and offences committed against the state and women/children.

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