- Apprentice Lawyer
- Legal Jobs
Online messaging platform, WhatsApp on Thursday informed the Madras High Court today that its encryption software is such that it is not possible to track down the original sender of a message, including forwarded messages.
The submission was made before the Bench of Justices S Manikumar and Subramonium Prasad in a case kept pending to navigate ways in which online crime may be curbed with the assistance of social media companies.
Expressing concerns regarding the spread of false messages through forwards and the use of WhatsApp for the perpetration of crimes, the Bench had queried whether it would be possible to trace the original sender of such a message.
Advocate General Vijay Narayan, while arguing for the state of Tamil Nadu, highlighted certain provisions of the Draft Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018. These rules cast an obligation on intermediaries to assist government agencies within 72 hours in the investigation of cybercrime.
The guidelines prohibit the uploading of a new class of content i.e. content that threatens public health or safety. Inter alia, these rules also require intermediaries to trace the originator of prohibited content on the online platform. The AG has argued that until these draft intermediary rules are notified, there must be a direction to intermediaries to strictly cooperate with law enforcement.
Following yesterday’s submissions, the Bench sought for additional information before adjourning the hearing. The Court has asked the state to furnish information regarding requests made by law enforcement to social media companies for aid in criminal investigation and their response/level of cooperation to the same. The Court has also asked for information regarding the approximate time frame within which the draft intermediary rules are likely to be notified.
WhatsApp encryption software prevents tracking originator of content
Senior Advocates Kapil Sibal and Arvind Datar argued for WhatsApp that in view of the end-to-end encryption technology it uses to protect user privacy, it is not possible to track the sender of a WhatsApp message, including the original sender of a forwarded WhatsApp message. Sibal pointed out that in order to discern the sender of any message, each and every WhatsApp message will have to be recorded, which is not possible. WhatsApp argued that it does not hold the decryption key
“When you [a user] send a message, it is encrypted. When you read the message, you decrypt it,”
This being the case, WhatsApp does not have access to any of the content sent through the platform. AG Narayan, however, argued that the difficulties being cited by WhatsApp could be overcome if its software is modified to that end.
“It is not as if it is impossible”, said AG Narayan.
Sibal responded that while it may be technically possible to modify the software, it would still not aid in tracking down the original sender of a WhatsApp message alone.
While this is the case, Sibal admitted that the issue at hand was a societal issue. However, he argued that it was something that needed to be tackled at the policy level. It was further submitted that WhatsApp has been collaborating in policy discussions with the government to resolve the issue.
Datar highlighted that the inherent limitations of WhatsApp flowing from its encryption policies is understood world over. In no other country has such a request for decryption of data been made, it was pointed out. Apart from reiterating that the reason for WhatsApp’s popularity was its privacy features, Datar also pointed out that if it had access to the information sought for by law enforcement, WhatsApp would provide the same.
“Why should we not give it?” he said. “It is in our interest to cooperate [with law enforcement].”
WhatsApp also informed that it only has access to basic subscriber information regarding the users who have registered to use the app.
No encryption obstacle for Twitter, Google
The hearing also witnessed brief submissions made on behalf of Twitter and Google. Both parties argued that all intermediaries cannot be viewed uniformly.
Appearing for Twitter, Senior Advocate Sajan Poovayya pointed out that WhatsApp would fall on one end of the intermediary spectrum. WhatsApp encryption policies mean that user data cannot be shared. Twitter, on the other hand, occupies the other extreme, said Poovayya.
Twitter content is not encrypted. The originator of a tweet is plainly visible, as is every user who retweets or otherwise interacts with it.
This being the case, it was argued that any policy discussion for regulations of intermediaries ought to take place on different levels.
Senior Advocate PS Raman, who is appearing for Google and YouTube in the matter also submitted that Google does not encrypt data either unlike WhatsApp. It was further informed that Google has a grievance officer for India to address any concerns regarding its platform. Senior Advocate Satish Parasaran appeared for Facebook in the matter.
The case will be taken up next on June 27.
The High Court took up the issue of cybercrime in a PIL that began with a plea to link Aadhaar with e-mail IDs to curb crimes committed online. The plea for Aadhaar-linkage was declined last year. However, the case was kept pending to look into measures in place to counter such crime.
Google, YouTube, Facebook, Twitter, and WhatsApp were impleaded as parties after the state informed the Court of difficulties in accessing online user data owing to the apparent non-cooperation of such intermediaries in cybercrime investigation.
On the last date of hearing, the High Court had directed the conduct of a meeting between the state government and the social media companies to discuss ways in which they can cooperate to tackle online crime.