No easy answers

In a somewhat surprising move, Facebook-owned WhatsApp has taken the Indian Government to court over the so-called 'traceability clause' in the new IT Rules 2021 which come into effect on May 26. The traceability clause essentially dictates that social media platforms would have to trace the "first originator of the information" should government authorities request it. This rule would impact any messaging app that uses end to end encryption for its messaging. This encryption not only means that the company does not keep logs of WhatsApp messages, but it also means that it does not track the originator of a particular message. WhatsApp has argued that to be able to trace the originator in these cases would require it to place some kind of a digital fingerprint on these messages so that they may be traced. Not only would this mean that the app would have to be specifically re-engineered for the Indian market, the company is also worried that this could potentially lead to a significant breach in the right to privacy for individuals. Ultimately, the company argues, this would have a chilling effect on the exercise of free speech. The question, as per WhatsApp is not that this would be an uncommon occurrence and that it would only need to trace a few messages at best. As the company puts it, to trace even one message would be equivalent to tracing every single message. This is because the company says it cannot predict which message the government would have to investigate in the future. This could mean that WhatsApp would need to, in essence, keep a database of user messages and essentially gather a lot more personal data than people are clearly comfortable sharing. Furthermore, in a blog post on its stance on traceability, WhatsApp also said that traceability would also not likely function as the government planned. The system is highly susceptible to both abuse and mistakes. If for instance, an individual copies an email to WhatsApp or downloads an image and sends it on WhatsApp or even posts a screenshot, that person could be held up as the originator of that particular piece of content. WhatsApp also says that traceability would invert the basic principles of law enforcement investigations. Typically, the government asks a social media company for information relating to a known individual's account. Now, the government would approach the company with a piece of content and would ask the company to trace who sent it first. WhatsApp has also noted that it has a dedicated team to assist law enforcement on all valid requests by providing the limited categories of information that WhatsApp can legally keep as per current regulations. The government maintains that WhatsApp could and should find a way to trace the messages without breaking encryption. This leaves WhatsApp and other such services in a tricky situation in India. Non-compliance with the new regulations would mean that WhatsApp would lose its status as a 'significant media intermediary'. This would mean that the company would essentially be responsible for every message being sent on its platform. This could, to put it mildly, be disastrous for the company. But the situation isn't unique to India. Throughout the world, encryption in messaging apps has come under fire from governments who see it as a liability for national security. Even back in the US, companies have frequently been approached by authorities to make 'backdoors' into encryption channels. In countries like Brazil where such services are used to heavily criticise the government, messaging services such as WhatsApp have faced demands to turn over the logs for these messages. The problem is, both sides have a valid argument. It is true that such services are used for illicit purposes like disinformation and end to end encryption does make it harder for authorities to clamp down on the responsible parties. But it is also true that breaking the encryption and leaning more towards surveillance will infringe on the right to privacy and even the right to free speech. Authoritarian governments openly use social media surveillance to stifle free speech showing the potential misuse of such power and its effects. There is no easy answer to what sort of finer balance governments and companies should strive for to ensure that national security considerations do not tread on basic human rights in a democracy. No one system is guaranteed to work and not leave room for those planning to misuse such platforms.