Opinion | WhatsApp is right on encryption, but there’s a case for digital search warrants

Imagine three scenarios.

In the first, you are staying in a hotel and walk into your room and see a closed-circuit TV camera that is roving over your bed. When you complain to the manager, he says it is to help law enforcers trace fugitive terrorists, just in case.

In the second, there is a closed-circuit TV camera that is switched off, but the hotel manager says it will be switched on from a control room in case law enforcers want it in order to ensure national security.

In the third, the manager asks you to sign a paper in which you are obliged to allow law enforcers to search your room, and you give an undertaking that nothing illegal will happen between closed doors.

Unless I am sadly mistaken, you will choose the third option that sounds reasonable. The current controversy over the Government of India asking popular messenger service WhatsApp to find a mechanism to trace mischievous fake messages may be interpreted by activists as akin to asking a hotel manager to install closed-circuit cameras inside every room, but that may not necessarily be the case.

Just as any hotel, the Facebook-owned service has politely informed those concerned that any monitoring system that violates its promise of encryption would not be acceptable as “building traceability would undermine end-to-end encryption.”

The real question is what should be the nature of the “mechanism” that IT minister Ravi Shankar Prasad wants following his meeting with visiting WhatsApp CEO Chris Daniels.

Things get tricky because unlike usual hotel rooms, the messenger service helps a fast movement of rumours that have caused fatal lynching of people in India — which is officially at the centre of the minister’s demand. Picture the situation like in a hotel in which every room has side doors and/or passages that lead to other rooms that help gangsters or terrorists. The government only wants to ensure some kind of a safer architecture.

In a democracy, degrees of safety involve trade-offs between vigilance and privacy. But close and constant surveillance is an extreme form of vigilance.

In China, the State blocked WhatsApp last year. Facebook is already banned in that country. In the United States, WhatsApp’s competitor Telegram introduced encryption features that forced it to fall in line because privacy is precious for customers. India is not authoritarian like China but matching the US in privacy standards is not easy, especially when the US itself is going through difficult moments on the issue.

An overwhelming number of ordinary people want privacy and confidentiality as default options. Encryption is thus increasingly a basic offering in messenger services.

Before WhatsApp introduced encryption in 2016, US authorities passed on WhatsApp chats to Belgian authorities, helping them trace terror suspects. With encryption now a basic preference in WhatsApp, law enforcement everywhere faces new challenges.

It seems reasonable if regulators can make investigation an exceptional option rather than a regular choice. Imagine this like a digital search warrant in which some kind of a de-encryption or decoding of transmitted messages may be mandated when required. That is actually the government or lawmaker's job. Current laws seem to be adequate in making investigation an exception rather than the rule. Prasad's call to WhatsApp to appoint a grievance officer as well as set up a local entity seem superfluous. An official Twitter support for WhatsApp seems as good and Facebook's Indian entity appears solid enough to extend support on behalf of WhatsApp.

Things get complicated if a message, say, originates on Telegram or Snapchat (which allow messages to self-destruct), Facebook, an SMS or an email but spreads on WhatsApp.

The messenger service's current practice of limiting forwarding to five people is a reasonable effort. If WhatsApp can come up with digital heatmaps to trace vicious messages, that would be like a CCTV camera perched at a traffic signal, and that seems like a decent trade-off to help law enforcers.

In the US last year, Apple and the Federal Bureau of Investigation (FBI) fought over privacy and security requirements after the iPhone maker resisted the agency's attempts to seek "reasonable technical assistance" in the investigation into a terror attack. The dispute kind of ended in a draw after the FBI found a way to unlock seemingly unlockable iPhones, but the message is clear: you have to cooperate with law enforcement where required.

It is one thing to protect messengers from hackers and snoopers but another thing if encryption creates a dead-end for genuine investigators chasing terror suspects. Just as a hotel keeps a master key at the reception, the digital equivalent of a search warrant may be the best intermediate option in a world where privacy and public safety are locked in a grey embrace.

(Madhavan Narayanan is a senior journalist. He tweets as @madversity. Views expressed are personal)