Legal Implications of New WhatsApp Encryption Policy in India

WhatsApp has recently jumped on the encryption bandwagon with a new end-to-end encryption policy. Undoubtedly, the company shows its favor and commitment for users’ privacy protection through this policy; it is interesting to know its legal implications in India as the Indian government may consider it illegal.

What is end-to-end encryption?

It is a technology that allows only recipient’s device to decrypt any sent messages including file transfers and voice calls. Any third party (like security agencies) cannot able to decrypt them. In other words, third party interception of messages is not possible with end-to-end encryption technique.

WhatsApp users can get this facility with the latest version, and the setting would be enabled by default.

Why is it illegal?

In countries like India, where terrorism and other disruptive activities are quite frequent, such revolutionary technology can create grave concerns against the national security. People indulged in disruptive activities can misuse this technology as there is no interception possible, and therefore, it can be considered as illegal.

As per the provision of IT (Amendment) Act, 2008, the Central Government can prescribe the modes or limits or methods for encryption in India. It is necessary to prevent any misuse of the electronic medium. The government can access encrypted data for keeping watch on suspected criminals and terrorists under the provision of a lawful interception. The end-to-end encryption policy is a big blow for the legitimate necessity of decryption of online data.

Reason of government’s dilemma

At present, the telecom licensing policy has restricted encryption to 40-bits, but such a weak encryption cannot restrain the rise of cyber crimes and phishing attacks. Also, OTTs like WhatsApp, Skype, and Viber do not fall into the categories of Telecom Service Providers (TSPs) or Internet Service Providers (ISPs), and therefore, they are not bound to comply with encryption requirements or any other regulations. In the absence of any regulations, the government has to accept a new end-to-end encryption policy as legal, and it is a major cause of the government’s dilemma.

Today, WhatsApp has a dominant share of more than 52 percent in the Indian messaging application market. Therefore, TRAI’s OTT Consultation Paper has specifically added that the Internet-based communication services like VoIP and instant messaging have (to follow) security implications as they bypass the regulatory regime already enforced on conventional voice and SMS services. Along with this, Section 69 of the IT Act 2000, WhatsApp, as an intermediary channel, is expected to comply with all the provisions of intercepting and decrypting information. With the latest end-to-end encryption, WhatsApp has shut the doors for any decryption and the GoI can do a little in this matter as WhatsApp is not based in India.

All these reasons make the government’s stand weak, but if WhatsApp refuses to comply with the directions given in Section 69, then, the government may declare WhatsApp illegal in India.