Introduction
In today’s day and age, technology has taken over every field that we know exists, from a simple task as addition all the way to the most complex mechanisms of creating energy. Among the many boons of technology is communication, it has become so easy to talk to someone in another continent that people have started to forget to communicate with the ones right next to them. But that is not the worst of it, these forms of communication over technology has made it very easy for the communication of unlawful activities too.
The most used form of non-call communication is now text messaging, it is a way to simply send across your message and leave it at the disposal of the receiver who then can respond to the text whenever he may feel like. There are many platforms where text messaging is possible, from SMS (Short message Service) which costs a minimal fee for each message sent via the cellular network, to WhatsApp which runs entirely on the internet and costs nothing extra while promising end to end encryption.
India is WhatsApp’s largest market with 400 million people using the platform to share text and audio messages, pictures, and videos for free.[1] This high level of usage also includes a lot of unlawful acts being planned on the platform because the users believe that the authorities can’t find them due to the high level of end to end encryption of the chats. In recent news though, India has seen a lot of WhatsApp chats made available to the public realm, almost as soon as the relevant authorities gain access. This makes one wonder how safe India’s most popular chatting app really is, both in terms of privacy and security.
WhatsApp Terms and Conditions
WhatsApp, a Facebook subsidiary since 2014, provides messaging, internet calling and other service to users around the world. Based in the United states, their terms clearly stipulate that any dispute that a USA or Canada citizen user may have against WhatsApp shall be decided by arbitration in the United States or in Canada. Any user from anywhere else must submit to the personal jurisdiction of and agree that WhatsApp will only resolve their claim in the United States District Court for the Northern District of California or a state court located in San Mateo County in California.[2]
WhatsApp’s privacy policy also states that they do collect, use, process and share information generated from the use of this platform. But they also explain that the messages you send will only be saved on the WhatsApp server for a maximum of 30 days in case the message has not been delivered. Once the message has been delivered, it is stored on your own device and cloud, but not on the WhatsApp server. The details about the exact pieces of information they collect from us and how they use it is mentioned in detail in their publicly available privacy policy.[3]
They also mentioned that they share the information generated with not only private companies, but also the government as per the rules of each state that they provide service in. This shows their initiative toward the safety and security of the state. In their “Law And Protection” subheading, they mention that they may save information to respond to legal processes, for applicable law and upon request of the government. Another important piece of information mentioned on the site, is the acceptable use of their service, they have gone ahead to explain what the app will and will not tolerate.[4]
Over the current pandemic and work from home environment, these texting platforms, especially WhatsApp has gained a lot of traction not only for the right reasons. Even with all these measures of security, and promises to comply with governments, WhatsApp does lack in places. According to law enforcement agencies, WhatsApp is being used to incite violence and gather mobs, trade illegal drugs, share pornographic material etc. because of the belief of the users in the end to end encryption of the apps making it difficult for the police to track the source of the messages.[5]
In the recent case of Facebook Inc. v. Union of India[6] it was seen that an order under section 91, of the Criminal Procedure Code directing a service provider to provide access to WhatsApp chats would not stand for the simple reason that WhatsApp does not save the chat messages on their servers.[7]
Back in 2018, the Indian police was trying to trace the source of the leaked CBSE papers on WhatsApp and complained that WhatsApp would not cooperate because of their claim of not saving any data. The police also mentioned, that if they somehow did have the log of data required for the investigation, it would still take almost a year to comply with the US laws and get the data in hand in India. What we needed was a strong international framework to help the app directly communicate with the Indian government.[8]
Recent Events
The main reasons for these questions to be raised at this point are because of the alarming rate at which media houses were showcasing the private WhatsApp chats of celebrities in their national telecast during the whole Sushant Sing Rajput incident. They received leaks of Sushant’s ex-girlfriend Rhea Chakraborty’s chats with filmmaker Mahesh Bhatt from the agencies investigating the mysterious circumstances of the actor’s death, now declared suicide and used the chats showing that she had ‘dumped’ him, to put the blame on her. As the scope of the Narcotics Control Bureau’s (NCB) investigation increased, more chats were released to the public domain spoiling the image of reputed members of the Mumbai film industry for drug abuse.[9]
The Delhi police also filed a charge sheet under sections of the Unlawful Activities Prevention Act (UAPA), Indian Penal Code (IPC) and Arms Act against 15 individuals for creating a WhatsApp group to allegedly fuel and orchestrate the violence in North-East Delhi under the pre-text of anti-Citizenship Amendment Act (CAA) protests. The police claim that a total of 25 WhatsApp groups were used by top and middle level conspirators to guide the foot soldiers causing the riots. These chats have been printed and filed along with the charge sheet as evidence. Parts of these transcripts too were leaked to the media houses and hence to the public.[10]
A lack of proper data protection laws seems to be the core reason for these careless media leaks, and confusion about the extent to which data can be accessed to incriminate someone. But a bill has been framed and is currently being examination by a joint parliamentary committee. This Personal Data Protection (PDP) Bill, 2019 is allegedly going to change the entire operation of procuring digital evidence if it passes the houses to become an act. It will only allow the police to access the relevant case-specific material instead of picking up all the data stored in a computer that allegedly has incriminating evidence. Yet the bill is nowhere close to as stringent as the General Data Protection Regulations (GDPR) of the European Union.
The bill in itself can’t change everything, the existing provisions in the IT Act like section 43A and section 72A would also have to be amended to penalise improper disclosure of personal information. There do exist rules under the IT Act, the ones notified under section 43A clearly define Sensitive Personal Data which includes financial details. Rhea Chakraborty has thus dragged the media houses to court with valid cause and should be able to recover damages for the leaks from the police as well.[11]
On an unrelated note, the National Investigation Agency (NIA) were proud to announce that they used malware via WhatsApp to hack into the phone of Jaish-e-Mohammed commander Umar Farooq and trace his location. Farooq was responsible for the 2019 terror attack in Phulwama, in which 40 men of the Central Reserve Police Force were killed. After he was killed in an encounter, forensic experts recovered a mountain of digital evidence from the chats saved in his damaged mobile phone. End to end encryption does exist but the data could still be recovered from either end of the conversation and used as evidence under section 65B of the Indian Evidence Act, 1872[12].
Laws in relation to WhatsApp
Media Houses publicly airing chats is a clear violation of the fundamental right to privacy as recently declared in the judgement of K.S. Puttaswamy v. Union of India[13]. The right to privacy was finally declared a fundamental right after being rejected by the apex court multiple times over many years. But this decision would not have any direct impact on WhatsApp since it is a private entity and part III of the constitution is only enforceable to state action.[14]
This is a good thing, because if all platforms like WhatsApp start allowing the government to snoop on people’s data, no one would know the extent to which their data is accessed, and in a country like India there would be daily leaks like the ones seen above.[15] But at the same time, it would mean giving a safe space for the conspiring of criminal activity like planning a terrorist act or the trade of drugs etc.
So, a middle ground was found where the government would not be allowed to freely snoop on data, but the platforms must give access when demanded by legally authorised agencies. The same has been explained under section 79 of the Information Technology Act, 2000 which says that the intermediary will not be held liable if they cooperate.[16] The home secretaries have the right to order the interception of phone conversations for the security of the sovereign state under section 5 of the Telegraph Act, 1885[17]. The police also have the right to monitor emails, SMSs, chats, etc. under section 69 of IT Act[18] under the same circumstances, but this becomes difficult due to the end to end encryption software used by WhatsApp. But if a person suspects that they are under unauthorised phone or digital communication surveillance, they have the right under the Right to Information (RTI) Act to find out from the Telecom Regulatory Authority of India (TRAI) if their phone is being tapped.[19]
Claiming that the sharing of fake videos and rumour mongering even on the small scale was creating huge complications over time, the government of India, in 2019 insisted that the messages transferred on WhatsApp and other encrypted apps be traceable in case of criminal activity. The request made by India was not even close to those demanded by the USA, UK and Australia, yet the Indian public accused the government of only taking this step to snoop on the citizens, strengthening the case against traceability.[20]
While there are no separate laws for WhatsApp users in India, carrying out certain activity on the platform could lead to a user’s arrest under the Information Technology Act, 2000 (IT ACT)[21]. Chapter XI of the act includes the punishment for offences conducted over WhatsApp, these offences include but aren’t limited to:
- Promoting unlawful activities,
- Sharing obscene material (especially child porn),
- Harassment of women,
- Identity theft,
- Spreading hate messages to provoke harm to any religion or place of worship,
- Sharing of fake news on sensitive topics that could incite violence,
- Selling drugs or other prohibited things.
There are various reasons for the said acts to be considered criminal in nature as may be realised from the face of it, but with the rise in use of WhatsApp in general and for unlawful activities more stringent action is needed.
While the messages one shares on the platform may be encrypted, the police have easy access to the sender and receiver’s names, IP addresses, mobile numbers, locations, cellular networks, handset types, and exact time of communication along with its duration.[22] This information can be used to access the messages from the user’s device itself, when the police have valid reasons to believe that the user was involved in criminal activity. This is called confiscation and is recognised under section 76 of the Information Technology Act, 2000. But if the evidence is procured through illegal means, it itself becomes an offence under section 66 of the IT Act and would not be admissible in court.
Cases where WhatsApp was used as evidence and how
An important concept in most jurisdictions of the world is that of security from self-incrimination. Article 20(3) of the Indian constitution and the 5th amendment right in the USA both state that no person shall be compelled to be a witness against himself. So, if one knows that he has sensitive material on his phone and by unlocking his phone for the authorities he would be self-incriminating, he has the right to refuse. This has been highlighted in the Indian cases of State of Bombay v. Kathi Kalu Oghad[23]; Selvi v. State of Karnataka[24] and the USA case of Doe v. United States[25].
The decision in Fisher v. United States[26] pointed out an exception in what was laid down by those previous cases. It explained that in the event that the authorities already knew and could prove that incriminating material exists on the device that was accessed and processed by the suspect they would have the right to compel the suspect to unlock the device.[27]
Two men in the UK tried to sue their company for firing them only to deprive them of the company shares. [28] The company simply submitted transcripts of the WhatsApp group that these men shared pornographic material and degrading comments about their female colleagues on, and stated this to be the actual cause of the sacking. Judge Jonathan Simpkiss ruled in the favour of the company seeing the WhatsApp chats as valid evidence for the justified sackings.[29]
In another case, WhatsApp chats were used to prove that the managing director of an IT consultancy company was unlawfully poaching the employees of Secarma Ltd. The director used pseudonyms to disguise the conversations as about bowling championships, but the visible intention the delete the chats due to “potential legal consequences” gave them up.[30]
The recent judgement of the apex court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal[31] helped interpret the section 65B of the evidence act further, because of the many changes in technology and the need for updated laws to accept new forms of electronic evidence in the right way. This judgement resolved the controversy created by the varying interpretations provided by the apex court in the cases of Navjot Sandhu[32], Shafhi Mohammad[33], Tomaso Bruno[34] and Basheer[35].[36]
While a special leave petition is still pending, the Supreme court had stayed the High Court’s order for bail of an accused who was found guilty of committing rape and other offences by the trial court relying on WhatsApp chats as evidence. Later, a division bench of the Delhi High Court dismissed an appeal as they considered the contents of the chats submitted to show valid consent for a physical relationship from the prosecutrix without any inducement. [37]
In another recent event, the Supreme court granted an injunction under section 36 of the Specific Relief Act, 1963 in the KS Infraspace case. The court held that the WhatsApp messages submitted were capable of being considered as valid evidence to grant relief.[38]
Conclusion
Social media, as almost every human would agree, is a boon for that the convenience it provides, but also a bane for all the social issues that come with it. Similarly, how a user uses WhatsApp depends from user to user and that could be for the better as well as for the worse for society. There isn’t much that can be done to change that, as there exist many substitute text messaging apps that users could flock to.
The legislation is slowly coming around to recognise this and working to incorporate the ethical use of technology and punishment for misuse in the existing laws as seen in the many judgements, acts, amendments and bills in the house. WhatsApp in general has never seemed to comply with the Indian authorities for investigations, but the authorities have found alternative ways to use this easy form of evidence.
People may have an issue with their chats being put in the public dominion, but one must not conduct unlawful activity in the first place, to make sure that their messages stay private. Texting is the new alternative to telephonic conversation, and can’t even be tapped like any classic cop movie would show. Thus, using this as a form of evidence to reduce crime and prove intent will definitely be beneficial to the world at large with some privacy laws in place.
References:
[1] (Deka)
[2] (Terms of Service)
[3] (Privacy Policy)
[4] (Terms of Service)
[5] (Sarkar)
[6] (Facebook Inc. V. Union of India)
[7] (Sajlan)
[8] (Bureau)
[9] (Deka)
[10] (ANI)
[11] (Deka)
[12] (Indian Evidence Act, 1872)
[13] (K.S. Puttaswamy v. Union of India)
[14] (IANS)
[15] (Traceability Of WhatsApp Messages Could Be Violation Of Fundamental Right To Privacy)
[16] (The Information Technology Act, 2000)
[17] (Indian Telegraph Act, 1885)
[18] (The Information Technology Act, 2000)
[19] (Telecom Regulatory Authority of India (TRAI) v. Kabir Shankar Bose)
[20] (Deshpande)
[21] (The Information Technology Act, 2000)
[22] (Sarkar)
[23] ( State of Bombay v. Kathi Kalu Oghad )
[24] (Selvi v. State of Karnataka )
[25] (Doe v. United States)
[26] (Fisher v. United States)
[27] (Pinchas)
[28] (Wells and Solari v PNC Global Logistics)
[29] (Executives lose wrongful dismissal case over ‘sexist’ WhatsApp group)
[30] (Forse and others v Secarma Ltd and others)
[31] (Arjun Panditrao Khotkar Versus Kailash Kushanrao Gorantyal And Ors.)
[32] (State (NCT of Delhi) v. Navjot Sandhu @Afsan Guru)
[33] (Shafhi Mohammad v. State of Himachal Pradesh)
[34] (Tomaso Bruno and Anr. v. State of Uttar Pradesh)
[35] (Anvar P.V. v. P.K. Basheer & Ors.)
[36] (Argus)
[37] (Vikas Garg & Ors. v. State of Haryana )
[38] (Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace, LLP Ltd.)
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