What’s up, WhatsApp?

The issue in the WhatsApp lawsuit is not one of technology or privacy intrusion, but one of the very maintainability of the lawsuit.

Imagine for a moment that I decide to sue the US government over its treatment of the Indian citizens of the US. I collect several anecdotal evidence of how people of Indian origin in the US have been systematically abused – socially, in the workplace, in supermarkets, on the road and so on.

With all the evidence, I approach the US Supreme Court with a suit against the US government and pray for specific relief – to bring about a statute to provide specific punishments against such offences.

What do you think will happen?

The US Supreme Court will throw out my lawsuit even before I can state my name in full (which is a mouthful, in any case).

The reason: I have no locus standi in the matter.

This is exactly what WhatsApp (WA) appears to have done in its recent lawsuit against the Union of India. WA has purported to represent itself as the guardian of free speech and privacy, on behalf of its 530 million users in India (according to the Government of India figures).

WhatsApp has filed the suit under Article 14 and 21 of the Indian Constitution, which provides Right to Equality and Protection of Life and Liberty. The big problem lies here – WhatsApp does not represent any part of India – geographically, or as a class, or as a caste or as anybody.

WA is a commercial messaging company – straight and simple. It fears that the new laws will allow the lawmakers to demand changes to their algorithm and their promise to their customers – “your privacy will never be violated. You can say pretty much what you want, and we provide the platform for the same”. They feel threatened because they believe that their customers will desert them if and when WA gives the govt the right to trace the originator. Fair point, I would argue.

My only question is – why are you purporting to be an evangelist when you are a merchant?

Now whether the new IT rules violate the right to privacy or not is a question that will probably be decided in a court of law. However, WA’s defence that the new rules pertaining to ‘trace the originator’ forces them to break the privacy norms of the company is patently false. The govt is not, at least in the ‘trace the originator’ rule asking WA to open the messages. It is merely asking WA to declare the origin of the message. That, for a tech company, ought not be a challenge, from a technology perspective.

However, what WA has done is that it has adroitly, changed the narrative from ‘trace’ to ‘decrypt’.

Having said that, the very basis of WA’s lawsuit is a little surprising, to say the least. Instead of claiming commercial reasons (which it was eminently entitled to claim, as a corporation), it has decided to take a high moral ground – that of being a protector of fundamental rights of Indian citizens.

The Indian govt, on the other hand, is clearly confidant of beating this legal challenge, if it ever comes down to it. If at all the Hon Supreme Court does allow the suit to go forward (which is doubtful), the govt has multiple arrows in its quiver, including invoking the exceptions under Article 19 (2), which comprises the grounds on which restrictions on freedom of speech and expression can be imposed, which include, among others:

• Sovereignty and integrity of India
• Security of the State
• Public Order
• Decency and Morality
• Incitement of an offence

The team at WA has missed this crucial point. Either which way, the govt can clamp down on WA either under the new rules of 2021 or under article 19(2).

By claiming to represent the citizens of India, WA has also endangered its locus standi in the entire issue. What might have been a straightforward conversation, is now mired with politics, the left-liberal rhetoric and huge amount of hyperbole.

To be fair to the Indian govt, its stance is clear, and its irritability of WA’s tactics only reinforce its confidence in getting its way.

With no precedents, the Supreme Court is going to have to define a new rule – whether foreign companies can posit themselves as the saviors and purveyors of free speech in an a democratically elected country? Secondly, the question is – how far will the tech giants go? They dared the Australian govt, they have been facing increasing scrutiny in Europe (with huge penalties), they have been banned in China.. Are we approaching a situation where some body corporate would wish to be treated like a sovereign? Whatever happens to Atmanirbhar Bharat?..

Another East India Company, maybe?

The biggest problem for WA could be from its US allies – Google, parent Facebook, Microsoft, who are willing to toe the line as far as the new rules are concerned. Maybe their stakes are not so high (not conceivable) but the only hope for WA is to get some sort of a collective going (which looks almost impossible now) and pressure the US Govt and the US Trade Representative (USTA) to put some degree of its not-inconsiderable influence on the issue. But then, the risk is becoming a ball on the ping-pong table!

As things stand, WA has played a blind hand in a full house where no one has opened their cards.