Centre, WhatsApp contradict own arguments in different cases on privacy rules

WhatsApp and the Government of India are opposing parties in two cases of user privacy at the Delhi High Court. However, both made contrasting arguments regarding the same in the two different cases, The Indian Express report said.

When WhatsApp defended its January 2021 policy update of sharing user data with its parent company Facebook and its group of companies, the Centre argued that the policy is a "violation of informational privacy". It also argued that the app runs anti-user practices by obtaining users' consent without giving them a choice.

In the second case, WhatsApp argued against the Centre's new IT intermediary guidelines as a "dangerous invasion of privacy" that threatened free speech and wants it quashed. The new guidelines by the Centre directed social media platforms to provide traceability of the first originator of an unlawful message. The Centre argued that tracing the origin of a message pertains to reasonable restriction of the fundamental right to privacy.

Both the party's arguments in a case run contrary to the stance they took in the other, and the curious fact is that both cases are under trial at the same court.

WhatsApp's January 2021 policy was challenged at court through a Public Interest Litigation (PIL), which stated that the policy violates the fundamental right to privacy under Article 21 as it did not offer users a choice to opt-out. The PIL also said that in India, laws regarding data have noticeable fissures which required a regulatory framework.

The Centre responded to the PIL by asking WhatsApp to refrain from implementing the policy citing pending adjudication by the court. It said that WhatsApp's new policy" undermines the sacrosanct values of informational privacy, data security and user choice for Indian users". It further argued that the app treats Indian users discriminately, pointing out that the policy is not applicable in Europe.

WhatsApp cannot implement the policy in European Union because of the General Data Protection Regulation there. India also introduced something similar, India's Personal Data Protection Bill, but it is pending before a Joint Parliamentary Committee since January 2020.

In the new IT intermediary guidelines case, the Centre released a press release that traceability is essential to curb fake news. However, WhatsApp challenged it in court that breaking its end-to-end encryption policy would put journalists and civil and political activists at risk. It argued that there is no way to predict which message government would want to investigate. Moreover, this would be a new way for mass surveillance because an enormous database is needed for every message users send or a permanent identity stamp needed for every private message.

WhatsApp, through its filing, told the court that end-to-end encryption only allows the sender and the recipient to access a message. Therefore, any entity other than the two, including WhatsApp itself, could not access what is sent.

However, WhatsApp's claims that the provision of sharing data with Facebook is applicable only for business accounts undermines the encryption policy. Because even business accounts are also end-to-end encrypted. WhatsApp also provides businesses with the ability to choose Facebook to store messages and respond to customers.