Activists decry move empowering Centre to intercept WhatsApp, Signal messages and calls

The government of India proposes to put in place a new law which would enable it to intercept encrypted messages, voice calls, and even video calls made on Over-the-Top (OTT) communication platforms including WhatsApp, Signal, and Telegram.

The Department of Telecommunications (DoT), which functions under the Ministry of Communications (MoC), released the draft of the Indian Telecommunication Bill, 2022 on Wednesday for public consultation. 

In the draft Bill, ‘telecommunication services’ have been defined as anything to do with broadcasting, email, voice mail, video-communication, and audio-communication services. 

Explaining the repercussions of the draft Bill, the Internet Freedom Foundation (IFF), an Indian digital liberties organisation, said that in aiming to create a comprehensive framework for the regulation of telecommunication in India, the draft Bill seeks to “repeal the Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1933, and the Telegraph Wire (Unlawful Protection) Act, 1950.”

As a result, encrypted messaging apps may be required to “not transmit, intercept or detain or disclose any message or class of messages” on behalf of the government.

IFF said that the provisions of the draft Bill are in the spirit, and to some extent, the same as the provisions of the Indian Telegraph Act, 1885, “creating the same concerns, threats and issues. Except, the concerns have gotten worse.” 

The main object of the Telegraph Act of 1885 was to give power to the government to install telegraph lines on private as well as public property. 

Anushka Jain, associate policy counsel for surveillance & transparency at IFF, said that the draft Bill seeks to expand the definition of telecommunication services to include OTT communication service providers such as WhatsApp and Signal, which will lead to these service providers being treated the same as telecommunication service providers. 

“This could lead to Over-the-Top costs being put on them which could force them to leave the market because they will not be able to fulfill the costs,” she told National Herald. 

The requirement for these platforms to intercept and provide messages to ‘authorised officers’ will allow the “surveillance of communication taking place on their platforms,” said Jain, adding that the decision is problematic as WhatsApp and Signal may have to “break end-to-end encryption as a result of these provisions”.

End-to-end encryption, said Jain, means that even the OTT communication service providers do not have access to the messages, which gets encrypted when a sender shares the message and gets decrypted when it reaches the receiver. 

“This law will break that end-to-end encryption and the authorities can access the messages that are being sent. This is harmful to the right to privacy of users,” she said. 

Prasanth Sugathan, legal director of the Software Freedom Law Center (SFLC), a legal services organisation, said that the draft Indian Telecommunication Bill, 2022, which has come after more than five years of the Puttaswamy judgment on privacy pronounced by the Supreme Court, has continued with the same provisions regarding surveillance and suspension of telecommunication services as in the previous Act. 

“The draft Bill has not considered the need to reform the provisions regarding telephone tapping and suspension of telecommunication services to be in tune with the right to privacy of citizens,” he said, adding, “It is imperative to have a proper mechanism for surveillance with judicial and parliamentary oversight.”

A section of the draft Bill states that the state and/or Central government may circumvent encryption "on the occurrence of any public emergency or in the interest of the public safety." If India's sovereignty, integrity, or security of India, friendly relations with foreign states, public order, or preventing incitement to an offense, requires the government to intercept or disclose the private conversations of users, the government may do that, it says. 

Geeta Seshu, founding editor of Free Speech Collective (FSC), a media organisation which aims to protect the right to freedom of expression, said that the government had been trying to regulate the use of these services for a long time, but it needed to be examined how the users are being protected under the Bill. 

“It will completely destroy whatever chance the users have to communicate without any fear of surveillance or censorship. There has been no consultation. The process by which it is coming in is simply not transparent. No views have been taken into consideration,” she said. 

In 2021, many users started switching to the privacy-focused messaging app, Signal over WhatsApp due to privacy concerns, and as a result, it became the top free app on App Store in India. The fresh move by the Centre, however, could bring Signal into the ambit of threat to data protection as well.

“These platforms can only fight back if they stay firm,” said Seshu.