The Centre told the Delhi High Court on Friday that WhatsApp is an “out and out foreign commercial entity”. The Centre said WhatsApp monetise users' information for business/commercial purposes are not legally entitled to claim that they protect privacy. In fact, the regulators of various countries clearly hold that Facebook should be held accountable for its services and data management practices.
The messaging platform has no right to challenge the constitutionality of an Indian law. Defending the new IT Rules 2021 and its proviso allowing traceability of the originator of a message, the government said it is meant to help law enforcement prevent offences.
Facebook and Whatsapp have recently challenged the new IT rules on the grounds that they violate the right to privacy and are unconstitutional. The government by citing previous Supreme Court rulings said it is their job to take action in order to identify persons who create and circulate electronic information on sexual crimes.
The government also raised question on the claim made by WhatsApp regarding traceability which will break the end-to-end encryption feature of the platform. It said that Whatsapp already has a technology that traces sender of a message without intercepting other users.
Centre raised concerns over the company's new privacy policy, that allow sharing of information with Facebook, which “can be used for profiling” of citizens.
“Under its mandatory privacy policy, personal data of the users would be shared with Facebook, which can be used for profiling. Such profiling is also feasible on political and religious views and can be used for any activity which can harm the security of the nation, its sovereignty and integrity besides affecting individual privacy,” it added.
WhatsApp said "Requiring messaging apps to 'trace' chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermine people's right to privacy."
It urged the court to declare Rule 4(2) of the Intermediary Rules as unconstitutional, ultra vires to the IT Act and illegal and sought that no criminal liability be imposed on it for any alleged non-compliance with Rule 4(2) which requires to enable the identification of the first originator of information.