WhatsApp has sued India’s government in an attempt to strike down some provisions of the Intermediary Guidelines and Digital Media Ethics Code that requires messaging services to identify “the first originator” of information if called upon to do so by law enforcement authorities.
India announced the Code in February 2021, justifying it as an essential instrument to safeguard the state, combat crimes such as child sexual exploitation, and avoid moral outrages by allowing “traceability’ of messages to their source. The law was also recommended as an equaliser that would hold digital platforms to the same standards required of publishers and broadcasters.
The Code enjoyed bipartisan support and was endorsed by tech industry bodies.
But it also attracted plenty of criticism from the likes of India’s Internet Freedom Foundation and the Indian Software Freedom Law Center, who argued that the Code’s requirement to trace the source of information shared online erodes privacy, may breach India’s constitution, and is just a bad idea as it effectively breaks encryption. Those critics found friends abroad, with the likes of the Internet Society, Mozilla, and the Electronic Frontier Foundation all weighing in with their opposition to the Code.
Compliance with the Code was required as of May 25th, and that’s the day on Which WhatsApp chose to file its objections in the Delhi High Court, a tribunal with unusually far-reaching civil jurisdiction and considerable influence.
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WhatsApp’s filing hasn’t yet been made public, but the Facebook-owned messaging service has published an FAQ outlining its objections to the Code’s requirements and which labels India’s Code “a new form of mass surveillance.”
“To comply, messaging services would have to keep giant databases of every message you send, or add a permanent identity stamp -- like a fingerprint -- to private messages with friends, family, colleagues, doctors, and businesses,” the FAQ explains, adding: “Companies would be collecting more information about their users at a time when people want companies to have less information about them.”
You can’t make this stuff up.
India media suggest the Delhi High Court may expedite WhatsApp’s suit.
The case will be of global interest because if WhatsApp wins, it will set a precedent.
The case also has big local implications, because India’s government has shown an increasing proclivity to clamp down on social media when it carries messages critical of its agenda or performance.
In early 2021 social media services were asked to take down messages related to farmers’ opposition about new food wholesaling laws - a massive political problem for the government - on grounds that calls for mass protests could spark violence or spread COVID-19. TV shows felt to flout local religious mores also came in for government criticism.
Takedowns have also been ordered for content critical of the ruling BJP's handling of a massive second wave of COVID-19 infections. And this week Delhi Police visited Twitter’s local HQ in what has been widely interpreted as an act of intimidate after the avian network labelled a government political operative’s tweet as containing manipulated media designed to discredit opposition politicians.
If WhatsApp and other social networks manage to defeat the Code, India’s government will – by its own definition – have left the nation exposed to severe risks. And its government will have lost an instrument that would help it to silence critics. ®