WhatsApp lawsuit pivotal to future of Indian internet freedom

India’s internet future — free and open, or stymied and controlled — may be decided by a 224-page lawsuit filed by WhatsApp last week.

Saying that it wanted to curb fake news, revenge porn and other ills, Prime Minister Narendra Modi’s government introduced new rules in February that would compel social media platforms such as Facebook’s WhatsApp to trace chat messages, among other things.

As the three-month deadline for compliance ended, WhatsApp filed its petition in the Delhi High Court. The US company is arguing that being asked to track the originator of a message has no legal sanction. It does not protect people such as journalists and political activists from arbitrary state action. Nor does the rule meet the proportionality test — required now by Indian law after a 2017 Supreme Court verdict — of being the least restrictive infringement of Indians’ fundamental right to privacy. 

WhatsApp contends that keeping a log of messages would require it to break end-to-end encryption and save billions of messages sent by its more than 500-million users in India.

How the case is decided in the coming year or so as it winds its way to a verdict followed by an inevitable appeal may come down to the technical details of data transmission. Internet messages consist of two parts: the header and the payload. That unencrypted header, which can be read by any router it passes through, can be thought of as an envelope that shows identifying information, such as originating and destination IP addresses. The payload is the message itself. If it is unencrypted, anyone can read it along the way. If it is encrypted, the message is scrambled using hard-to-crack algorithms.

The government says that fingerprinting all messages — making it traceable — does not include the content. But WhatsApp pleads that it will still undermine E2E encryption, posing a serious risk to privacy, and would open up WhatsApp (and other chat apps such as Signal) not only to government interference, but also to hacking attacks. 

Limited use

The rules require significant social media intermediaries to appoint a compliance officer, a grievance officer and a 24/7 contact person, something they are grudgingly accepting. Facebook itself has fallen in line. Alphabet and its Google unit “always respect local laws in every country”, CEO Sundar Pichai said, according to India’s Economic Times. Twitter has asked for a three-month extension.

But traceability is a bigger battle, and WhatsApp was prepared for it. As the news website The Morning Context noted, India’s digital intermediary rules look a lot like those passed by Brazil’s Senate in June last year. That bill,  known as the Fake News law, required companies to store “massively forwarded” messages, with the complete chain of communication, for three months. The Indian version neither stipulates a holding period, nor is it restricted to messages going viral. Even if the payload stays encrypted, enormous, forever archives would be of limited use. Simply taking a screenshot or copy-pasting a message would start the chain from scratch.

The bigger concern for India is not that the Modi government is taking a leaf from Brazil’s playbook, but that it is dragging the country backward to the China of 2006. That is when Beijing was powering up The Great Firewall, a mammoth project that would prevent outside information from flowing into the nation and allow authorities to control what was shared internally. The result has been an exit from the world’s largest internet market by some of the US’s biggest names, including Facebook, Google and Twitter.

Abet government

Those same companies now see India as the next big hope. With much growth ahead, not only for content but also e-commerce and digital payments, none want to be left out.  

Where the People’s Republic had the resources to build the firewall itself, and later rely on companies to self-police, India may need domestic business interests to do the job. In the name of a responsible internet and protecting citizens from data imperialists, several will be eager to abet the government in soft censorship. Keeping global tech firms out — or forcing them to accept a subservient role — may help Indian capitalists build their own consumer-centric empires.

New Delhi will be able to ensure that digital communication platforms are popular but docile, amplifying the government’s messages without questioning propaganda or exposing state hypocrisy. Long-time China watchers will be familiar with it. Last week’s raid on Twitter’s New Delhi and Gurgaon offices, after the service labelled a tweet by a ruling party member as manipulated media, serves as a warning. 

After failing to keep their foothold in China by going it alone and making the case for an open internet, Western firms will try hard  to not lose the only other market of more than a billion people. Facebook and Google signed up last year for the more than $20bn fundraising spree by Jio Platforms, petrochemicals tycoon Mukesh Ambani’s digital business. Apart from lobbying for saner rules and seeking legal recourse, teaming up with India’s richest man seems a decent strategy.

Amid the various pushes and pulls, India may end up somewhere between a Chinese-style firewall and a Western model of free internet. The fate of WhatsApp’s legal challenge will go some way in tracing the landing spot.

Bloomberg Opinion. More stories like this are available on bloomberg.com/opinion