WhatsApp's 'comply or quit' stance on its privacy policy is fundamentally wrong
"Those who find the new privacy policy irksome or violative of their fundamental rights can quit. We've given full freedom to users to withdraw from Facebook and WhatsApp.”
These blunt and utterly insensitive words were uttered by Facebook counsel K K Venugopal at a Supreme Court hearing on WhatsApp’s privacy policies before a five-judge Constitution Bench headed by Justice Dipak Misra, after a PIL was filed by two students, Karmanya Singh Sareen and Shreya Sethi, against WhatsApp’s new policy under which data of a user can be shared with Facebook, the company that owns WhatsApp.
In the course of the court proceedings, WhatsApp’s counsel Kapil Sibal told the court that messages and voice calls over the platform were end-to-end encrypted which ensured complete privacy, and further added that the contract between a user and WhatsApp was completely in the private domain. Therefore, the policy could not be tested constitutionally by the apex court. However, that is not ground enough to give WhatsApp the benefit of doubt.
Why is this a problem?
A. Phone number is sacrosanct
According to an India Today report, if WhatsApp shares your number with Facebook, the Zuckerberg owned company will have a lot more information about you, the information that it would be in position to use for various purposes. WhatsApp making it look like that sharing a phone number is not a big deal and is not a privacy issue is more than disingenuous.
In the age of smartphones, a phone number is a very big deal.
B. Surveillance
Additionally, according to the young petitioners, Sareen and Sethi, the policy violates a user’s privacy and amounts to surveillance. The Supreme Court had earlier issued notices to WhatsApp, Facebook and TRAI to explain their legal positions over privacy concerns raised in this petition which expresses grave concerns about the instant messaging application’s data-sharing policy.
Sareen and Sethi had challenged WhatsApp’s policy allowing the app to share information about its users with Facebook. Under the Indian law, any interception of a phone conversation without authorisation could result in cancellation of a telecom operator’s licence. But no such safeguards exist for WhatsApp users.
According to Sareen, "OTT services are governed in some respect by the provisions of Information Technology Act, 2000 and are not subject to the same regulatory mechanism that is enforced on conventional voice and messaging services provided by telecom service providers".
In other words, if the new privacy policy goes unchallenged and isn't overturned in the Indian courts, then no one can stop Facebook from peeking into your private and intimate conversations.
Harish Salve, the counsel for the petitioners, said that under the new policy, users were unwittingly made to give consent to both WhatsApp and Facebook and the latter could snoop on messages privately circulated between users of WhatsApp.
"They claim that this is being done to improve services to be given in future to users. Whether the snooping is done electronically or manually, the right to privacy of users gets breached. The government is duty bound to protect the fundamental right of every citizen. If it is failing, then the SC can surely issue appropriate directions," said Salve.
C. Violation of civil liberties
As per Madhavi Divan, the petitioners’ advocate, the new policy on WhatsApp not only violates the right to privacy, which is linked to the right to life under Article 21 of the Indian Constitution, but also stifles right of free speech protected under Article 19(1)A.
“WhatsApp projects itself as a free service and uses consumer data to sell ads on Facebook. In the case of an illiterate or semi-literate person, the person will not be able to gauge the broader implication of the terms of service. Fundamental rights cannot be barred away by gaining the consent of a user using a click. Regulations need to be put in place. Primarily because the consumers are not necessarily able to protect themselves,” Divan told Medianama.
D. Negative choice and coercion
But while Sibal was trying to find middle ground, Venugopal minced no words, which proved to be an unwise move. The bench quickly countered his statement saying that this would amount to forcing a citizen to make a "negative choice".
Additional Solicitor General Tushar Mehta, appearing on behalf of the government, told the bench, “Freedom of choice needs to be protected and we are coming out with a regulatory regime on data protection. We stand by privacy and freedom of choice.”
Need for regulatory guidelines
The Constitutional Bench has fixed May 15 for preliminary hearing. The government had earlier informed the Supreme Court that it would soon form regulatory guidelines similar to ones existing for all telecom operators, to address privacy concerns of users of Over the Top (OTT) messaging services. The Department of Telecommunication (DoT) will be working with Telecom Regulatory Authority of India (TRAI) to devise this framework.
WhatsApp’s privacy policies are not a concern limited to India. The new policy has been criticised across the globe. Recently, a court in Germany asked Facebook to stop harvesting user information from WhatsApp, post which Facebook said that it was pausing the sharing of WhatsApp user data with Facebook in whole of Europe.