How private are your WhatsApp chats?
While the nation was transfixed by the soap opera of the investigation into the suspicious death of actor Sushant Singh Rajput, a collateral issue started playing out simultaneously. Besides the personal interrogations, most of the evidence in the case is in the form of WhatsApp chats of persons close to Rajput and a chain of others on the issue of the consumption and supply of drugs. Regrettably, the enforcement agencies chose to leak these conversations selectively to the media, which, in turn, built a whole narrative of lawbreaking with partial evidence even before the case is registered. This was not an isolated incident. Last month in Delhi, chat transcripts of 15 persons charged by the police for organising the Delhi riots in February this year were again leaked to the media.
All this has got people wondering how secure they can really feel about the privacy of their phone conversations—particularly on Whatsapp. Over 400 million Indians use this popular messaging service. The country is its largest customer base in the world. We make up close to one-fourth of the 2 billion user base of the app, owned by social media giant Facebook. A convenience tool, Whatsapp has been in India for over a decade, bringing people and communities closer and allowing them to share text, voice and video messages and photographs. It has become the preferred way to speedily disseminate information, especially during unprecedented situations like the pandemic and the lockdown. But, as is the case with all technology, it has a darker side. Two years back, video rumours about child lifters triggered random acts of mob violence across the country in which 30 innocent persons were killed. Last year, there were reports of several WhatsApp accounts being compromised by hackers using the spyware Pegasus.
Besides the state police, 10 central agencies are presently empowered to intercept, monitor and decrypt communications. They include the Intelligence Bureau, Central Bureau of Investigation, Enforcement Directorate, Narcotics Control Bureau, Central Board of Direct Taxes, Directorate of Revenue Intelligence, National Investigation Agency, Research & Analysis Wing, Directorate of Signal Intelligence and the Delhi police commissioner. Under Section 5 of the Telegraph Act, 1885, the Union home secretary and the home secretary of a state can order interception in the interests of the sovereignty and integrity of the country or for preventing incitement to an offence. In exceptional circumstances, a duly authorised officer of joint secretary rank or above can also issue such an order. There are other safeguards for review but all within the bureaucracy. There is no independent review outside that. Considering how compliant the bureaucracy has become to its political masters, the chances are that if the government wants to tap you, it will. Privacy activists believe these agencies have sweeping powers to track people online, read their messages, intercept their phone conversations and monitor their web browsing histories without warrants or independent oversight. Electronic evidence is admissible in courts if accompanied with a certificate that such evidence has not been modified.
A range of sophisticated digital tools makes it easier for agencies to harvest data from phones and storage devices. This has often helped law agencies solve what seemed like uncrackable cases. The NIA recently pieced together a mountain of digital evidence from the partially damaged mobile phone of Pakistani national Umar Farooq, to conclude that he was the mastermind of the suicide bombing attack in Pulwama on February 14, 2019.
Yet, the alarming rate at which law enforcement agencies are accessing and using WhatsApp chats as incriminating evidence is making users wary. This has raised concerns about privacy which the Supreme Court has declared a fundamental right of the citizen. It has once again fuelled the demand for an effective and comprehensive law on data protection and privacy. India currently has no such laws to protect individual privacy, and with multiple agencies authorised to snoop on smartphones, we run the risk of becoming a surveillance state. A Joint Parliamentary Committee is examining the proposed Personal Data Protection Bill, 2019, set to be tabled this winter session of Parliament. Once passed, the bill will restrict the collection of digital evidence by allowing law enforcement agencies to get only specific information for investigating crimes.
Our cover story, written by Deputy Editor Kaushik Deka, looks at the issues the leaking of private phone chats has thrown up and privacy implications. He examines the technical and legal aspects and the moral and ethical issues of tapping private chats. Sure, you cannot cite privacy as your fundamental right to hide criminality. Still, there needs to be a system with oversight that governs the collection of such evidence and maintains a balance between privacy concerns and the need to gather evidence.
Cyberlaw expert Pavan Duggal offers us a useful reminder. “The internet as a paradigm,” he says, “never sleeps, and the internet as a phenomenon never forgets. Every activity we do online leaves behind an electronic footprint, which can be used against us.” So, tread carefully in the digital world.
(India Today Editor-in-Chief's note for the cover story, How Private?, for October 12, 2020 issue of India Today magazine)