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WhatsApp and its end to end encrypted controversy : a critical legal examination

Updated: May 17, 2021


Akanksha Singh

Gone were the days when we Indians used phone text messages to stay connected to our near and dear ones when we became familiarized to an app which did almost everything to make our communication easier and more fun? Yes, the whatsapp it is, which in the mids of the year 2010 got launched in the subcontinent and hijacked almost all the Indian phones in no time due to its promising features, new communicating style and yes its promising privacy policy.



The sudden chaos over privacy policy


Let me take you back to the days when whatsapp was an independent company and was just

launched in the year 2009, where it made huge promises to not sell the data of its users to any third party. this however got changed when Facebook acquitted the platform in the year 2014 and from the year 2017 onwards it started sharing the data with its parent company .but the application users had the choice to not opt for this and continue with the ongoing policy .things were smooth until and unless our whatsapp screen was flashed with a new privacy policy on the 4 th of January this very year which left us all wondering as it was now changed to a take it or leave it policy where users were either supposed to agree and continue their ongoing services with the application or not agree to it and get there services terminated by the 8th of January 2020 , which simply means no whatsapp for you if you DO NOT AGREE .


Now here comes the very interesting debate as to will this new policy give a 360 view of your

data to the parent company which further will be a free access for online businesses. For

example lets assume I am talking to my family members about a trip to Manali in my whatapp

chat and suddenly my gadget is full of notifications reading “travel packages to Manali “ . A hard pill to swallow right?



In an attempt to convince its users about its new policies related to privacy, WhatsApp puts out a status to communicate to its Indian users that they are committed to secure the privacy of its users. With this status it certainly did try to clarify that it is not sharing any contacts of its users to its parent company Facebook. However, the very fact that it was able to share the status with all its users raised many eyebrows online and resulted in a twitter hashtag trend.


The need for a data protection law


All the misinformation and current haphazardness about the new privacy policies of whatsapp

wouldn’t have existed in the first place if our country had a Data Protection law .but sadly our

Data Protection Law has been suffering for 2 years as of now. For instance you wouldn’t have

been slightly affected by this if you were in Europe because the data protection law there hasn’t allowed whatsapp to exercise its new policies there. Whatsapp is legally bound to not share its data with Facebook in Europe region because it is a contravention of the General Data Protection Regulation (GDPR). Section 5 of the Data Protection Bill that was presented before the Parliament reads that the information can be used only and specifically for the reason to which the information is linked to and which the information was strictly provided. If this bill would have by now become a law then the entire new privacy policies of whatsapp would have been illegal in India.


Legal actions up till now

Lawyer Chatinaya Rohilla said that “it virtually gives a 360 – degree profile into a person’s online activity “ in the petition to the Delhi High Court . The petition said that whatsapp was

jeopardizing the nation’s security by sharing, transmitting and storing users data in another

country with the information that is governed by foreign laws. “Whatsapp has made a mockery

out of our fundamental right to privacy “read the petition.

“This type of arbitrary behavior and browbeating cannot be accepted in a democracy and is

completely ‘ultra vires’ and against the fundamental rights as enshrined in the constitution of

India “the petition further added.


The case was heard by the Delhi High Court and the court said that if you feel that whatsApp is compromising the data of its users then simply delete it. On Monday the court stated that it did not understand the said grievances raised by the petitioner with respect to the privacy policies of whatsapp a single – judge bench of Justice Sanjeev Schdeva said.


On the other side of the table during the brief hearing the Senior Counsel, Mukul Rohatgi who

appeared representing WhatsApp and Facebook addressed in his submissions that the private whatsapp chats were completely encrypted.


Kapil Sibal who was appearing for whatsapp added that “users don’t have to message with

businesses if they don’t want to .”


Considering all the above dialogue that were exchanged in the court room gives us a view that the entire hue and cry about the breach of privacy and Whatsapp’s culpability is being fanned unnecessarily in the petition. as far as the location and privacy concerns are being addressed, Justice Sanjeev Sachdeva added that even Google reaches out to our location and made it crystal clear that if at all anyone who is not satisfied with the new made policy has the free will to delete it and use some other third party application of their choice. However a similar petition has been filed before the Apex court, where Vivek Narayan Sharma a senior Supreme Court Lawyer has stated that the center has miserably failed to discharge its constitutional duty and its responsibility to protect the privacy rights of its citizen.


The plea also averse that in the year 2016, the entire European Union had prohibited this similar action of Facebook which was also asked to delete all the data that it had acquired relating to whatsapp users.

However, the ongoing petitions and court room discussion in both the courts can’t really help

reach out to a conclusion as it is yet to get a verdict .


User’s interest in other rival app

Though the decision by the court seems to be pending but public has always tend to respond in a different language that is quicker and has a great impact without fail. Statistics suggest that ‘Signal’ a rival messaging app has seen unprecedented growth. along with another encrypted applications Signal and Telegram has been the primary beneficiary of online outrage .telegram claimed to have surpassed more that 500 million users globally and Brain Acton who was the co – founder of whatsapp before selling it to Facebook who later became the co- founder of the above mentioned application Signal added that expansion in recent days have been “vertical “though he did not disclose any figures for the same.


In an email to Reuters Acton said that they have seen an unprecedented growth in the past

week and added that they are also interested to find and hire talented people. In the last week, Signal was found to be downloaded by over 16.8 million users which is noted to be a 62 – fold increases from the past week , whereas on the other hand whatsapp noted a 17 % decrease with only 10.6 million download .


Conclusion


With the evolving technology were every site we enter into seconds and every terms and

conditions we agree to without reading and knowing about it , I would like to say that we are

the ones jeopardizing our privacy first , our life’s are so carried away with the twitter trends ,

tiktok viral , instgram reels and Facebook pages that we have completely blindsided ourselves of the dynamicity of this online ocean . According to serves 99.9 % of the whatsapp users don’t even bother to care about the change in the privacy policies of whatsapp and are happy to know more about the controversy and misinformation because such issues are only a source of entertainment in the form of new found love for memes and trolls. It is high time the users transform themselves towards a more educated version of themselves as far as online privacy and the overall social media façade is to be considered accountable.


The government of India however may finally be stepping in as per reports received by the

Times of India by the official sources give an indication that the Government has been

“collecting details “ and even monitoring the development around the changes that have

occurred in the new privacy policy .

Whatsapp however is seen with a huge PR game by full –page newspaper advertisements as

people have started flocking over to different alternatives such as Signal. Telegram etc.

everything sums up to one big issue that is the lack of Data Protection Law in the nation. On

witnessing the current situation I strongly feel that the legislation like the Personal Data

Protection Bill of 2019 is a necessity in today’s time.




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