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End-to-end encryption not essential to WhatsApp as a platform: Tamil Nadu Advocate General

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“End-to-end encryption was introduced to WhatsApp later. Therefore, it is not essential to the platform. It was a business decision. It is a question of business policy versus law,” E. Manoharan, the Additional Government Pleader for the State of Tamil Nadu told MediaNama on the sidelines of the Madras High Court hearing on August 21.

The lawyers for the state of Tamil Nadu are absolutely clear: end-to-end encryption is not essential to WhatsApp as a business, and the state is not interested in linking Aadhaar to social media accounts for authentication, but wants some semblance of traceability that can aid it in investigating crimes. The control for that can stay with companies such as WhatsApp. This has emerged as the crux of the WhatsApp traceability case in the Madras High Court, as the Tamil Nadu government and social media platforms argue whether or not traceability is technologically possible on end-to-end encrypted platforms, and more importantly, if it should be made possible.

As MediaNama spoke to Vijay Narayan, the Advocate General for Tamil Nadu, Balaji Srinivasan, the Additional Advocate General for Tamil Nadu, who also represented the state in the Supreme Court on August 19 and 20 with Attorney General of India, K.K. Venugopal, and E. Manoharan, who has been representing the State of Tamil Nadu in this case, here’s what they had to say on different issues related to the case:

On WhatsApp end-to-end encryption:

  • “Until two years ago, there was no end-to-end encryption on WhatsApp. It is only in 2017 that they became end-to-end encrypted. Their stand that it is not [technically] possible to give this [originator] information is false. The professor from IIT, Prof. Kamakoti, said it is possible to attach the originator’s information to metadata. I am not even sure what that [metadata] is. Thus, [as per his submission], it is possible to trace the originator.” — Vijay Narayan [NB: WhatsApp enabled end-to-end encryption by default on March 31, 2016.]
  • “End-to-end encryption was introduced to WhatsApp later. Therefore, it is not essential to the platform. It was a business decision. It is a question of business policy versus law.” — E. Manoharan
  • “We are asking what is there in the law.” — E. Manoharan

On Aadhaar linkage:

  • “The tone and tenor of the orders passed the Madras High Court do not deal with Aadhaar linkage. They only pertain to finding the originator and perpetrator of crimes.” — Balaji Srinivasan
  • “After 18 hearings, they tried to make it out as if the main issue is Aadhaar linkage. Nowhere have we said this.” — E. Manoharan
  • “The High Court has clarified that they have expanded the scope of the PILs.” — E. Manoharan
  • “In the May 22 meeting between social media companies and the law enforcement agencies, if you look at the minutes of the meeting, nowhere was there mention of Aadhaar.” — E. Manoharan
  • “There are three [NB: there are four] writ petitions with Aadhaar in the main prayer. Thus, Facebook wants to link those [through the transfer petition]. But in the beginning itself, the [Madras HC] bench said that we are not going into Aadhaar. The bench asked us if we are facing any problem. And we said, after talking to our [Tamil Nadu] police about [sharing the] hash value [originator information]. We told them [the bench] what problems we were facing.” — E. Manoharan

On the need for cooperation from social media platforms with investigations:

  • “The state [of Tamil Nadu] takes this case very seriously because a lot of information that has a tendency to incite crimes is spread through WhatsApp. Therefore, we need the cooperation of social media platforms. We need their cooperation to find the perpetrators.” — Vijay Narayan
  • On how the goals of the central and state governments align: “Draft [intermediary] guidelines suggest that the government of India also wants cooperation from social media companies. The Information Technology Act also states that. So many things are transmitted on social media. There is no reason for no access to state.” — Vijay Narayan
  • “In Ponnamaravathi [a place in Tamil Nadu], a viral WhatsApp message led to community clashes.” — E. Manoharan
  • “Court asked us to file an affidavit [bearing details of information requests made to social media companies, known elsewhere as the Common Report]. And they [social media companies] submitted a response.” — E. Manoharan
  • “There have been huge delays in the [investigative] process. … Law enforcement agencies have also not been given information. … We can’t sit on formality where there is a law and order situation here. Our goal is to shorten the time-gap so that we can act quickly.” — E. Manoharan
  • “The whole purpose of deliberation [as during the court-ordered May 22 meeting between law enforcement agencies and social media platforms] is to come up with a conclusion in a uniform manner.” — E. Manoharan
  • “The MLAT treaty is too cumbersome. We have to go through various channels and that delays the investigative process.” — Vijay Narayan [NB: The MLAT treaty and the standard operating procedure for law enforcement agencies to get information from social media platforms that Twitter mentioned in the June 27 hearing are different. Narayan did not respond to questions about the latter.]

On whether traceability can compromise citizens’ privacy:

  • “The court has to balance those rights [the right to privacy and the right to securely govern the state]. We were asked to submit the problems we are facing in criminal investigations, and we have done that. The social media companies don’t give us the relevant information. There are too many delays.” — Vijay Narayan
  • “We are not saying that we should do it [traceability]. You [WhatsApp] can find it.” “The IT Act says that you [WhatsApp] decrypt and give us the information.” — E. Manoharan
  • “When has crime been made private?” — Balaji Srinivasan

On the Attorney General of India representing the State of Tamil Nadu in the Supreme Court:

  • “The State of Tamil Nadu has engaged the attorney general because he is the top law officer in the country and the state takes this very seriously.” — Vijay Narayan

Follow our extensive coverage of the WhatsApp traceability case here.

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