November 29, 2021

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WhatsApp’s Fight With The Indian Government Over Its Data Privacy Rules May Have Global Reverberations

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In September of 2015, when Indian Prime Minister Narendra Modi sat down with Facebook’s CEO Mark Zuckerberg for a town hall at its Menlo Park headquarters, employees cheered. Zuckerberg praised the Indian Prime Minister for his social media savvy, and Modi complimented the CEO’s Internet.org initiative bringing connectivity to the rural areas of India. The two leaders spoke about using social media as a tool for governance and elections. The duo had met earlier when Zuckerberg toured India in 2014, the same year Facebook purchased WhatsApp for $19 billion, buying the top messaging app in the mobile-first country and adding 30 million users to its network. The two leaders hugged, signaling a budding bond between them. “India is personally very important to the history of our company here,” Zuckerberg said.

The relationship has frayed since then. Facebook-owned WhatsApp is suing the Modi-led Indian government over new Internet laws which it says “severely undermine” the privacy of its user, requiring messaging platforms to store messages in a traceable database. In its lawsuit, WhatsApp says this would require breaking encryption and saving billions of messages from its over 500 million users in India. In 2016, WhatsApp got into a similar fight in Brazil over privacy concerns that led to the suspension of its service on multiple occasions. But the case against the Indian government is Facebook’s first against a national government.

Privacy advocates say the battle may set a precedent for how tech platforms guard their users’ data from prying governments. “The implications are quite profound,” says Alan Woodward, a computer scientist at Surrey University in the U.K. “If the Indian government sticks to their guns and the courts support them, then you might find a number of other governments might try and start doing something very similar.” 

India’s new IT rules were proposed in February and went into effect in May. India’s IT & Law Minister Ravi Shankar Prasad heralded the laws as a method of investigating on rape and child abuse, as well as offences related to “sovereignty, integrity and security.” The crackdown on the companies providing platforms comes at a time of rising tensions between the Indian government and social media generally. Last month, Indian police visited Twitter’s office in the capital Delhi to serve notice about an inquiry into a tweet by a BJP minister which was labelled as ‘manipulated media’.

To comply with the new law in India, messaging platforms would need to break end-to-end encryption- a system which allows only the sender and the receiver the access to the messages. That means WhatsApp will need to start collecting data on all the messages exchanged between all its subscribers every day. “There is no way to predict which message a government would want to investigate in the future….This would severely undermine the privacy of billions of people who communicate digitally,” WhatsApp said in its lawsuit against the Indian government. The company says the new rules are an infringement of fundamental right to privacy.

The reason tech companies have traditionally kept away from keeping data is because there is a huge cost involved in maintaining its privacy. “Having this huge amount of data is vulnerable to being stolen, or accessed maliciously. They (WhatsApp) don’t want to be in that business and have to secure that data,” says Matthew Green, associate professor at the Johns Hopkins Information Security Institute.

Usage of WhatsApp in India has grown exponentially as smartphones have become cheaper and Internet access more affordable. India has over 500 million WhatsApp subscribers, highest in the world. It’s unlikely that Facebook and WhatsApp will withdraw from India and its huge social media market even if they don’t prevail in court in India. “I can’t imagine Facebook is not going to be in India. They’re not going to back out of the Indian market,” says Woodward. A possible scenario could be that WhatsApp bends encryption rules only for the Indian market and starts collecting data on messages exchanged between users, experts say.

While WhatsApp has aided faster communication through its user-friendly interface, it also has become a platform of choice to spread misinformation in India, including abuse of the platform to distribute fake news and organize mob violence, experts contend. While these problems are hard to solve, breaking into an encryption and thus violating user privacy is not the correct approach to addressing the government’s concerns about fake news and mob violence, says Nikhil Pahwa, a New Delhi-based digital rights activist.

Lawyers and digital rights advocates say that collection of large amounts of user data messages could thwart free speech. Those concerns arise from arrests of Indian citizens for posting public comments on social media criticizing the regime. This month, police filed a sedition case against filmmaker Aisha Sultana, after she referred to a BJP leader as ‘bioweapon’. Earlier this year, 22-year old Disha Ravi, an Indian climate activist, was arrested for allegedly sharing a google document with Greta Thunberg, the 18-year old Swedish climate activist. The police called it a ‘tool kit’ that had an outline of how to support the farmer’s protest against the government’s new farm laws, on social media. 

“Privacy is one aspect of it, but there are other aspects of it such as freedom of speech and expression,” says Mishi Choudhary, technology lawyer and founder of Software Freedom Law Centre India. Earlier this year, Twitter blocked accounts of journalists and activists on orders of the Indian government during a farmers protest against new agriculture reform laws. 

Others are worried about mass surveillance.“There is a risk that privileged communication, such as conversations between lawyers and their clients, may be accessed by the state. Conversations between patients and doctors, journalists and their sources, are all at risk,” says Chinmayi Arun, a fellow at Yale Law School’s Information Society Project.  

Many users in India are perhaps unaware of the privacy issues shrouding the new rules. Disha Soni, a Mumbai based Charted Account who has been an avid WhatsApp user since 2013 is among them. The Covid-19 pandemic slowed down the business at her father’s handloom store which prompted her family to sell the shop. Instead, her family has started selling handlooms such as shawls through WhatsApp. She also uses the platform to communicate her 70-year-old father’s health reports with doctors. “I am not aware of the new rules or issues around privacy,” she says. Experts feel that Like Soni, many are unaware owing to a lack of public debate on the topic. “It is something where there needs to be a public debate and I’m not sure there’s been the debate yet,” says Woodward.

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