By Asheeta Regidi
Procedurally speaking the change is legal
False advertisement / misrepresentation claims are possible
The main problem people have is that WhatsApp has gone back on all its promises of privacy and security made in the past. Whatsapp’s blogpost states that the only thing changing is that WhatsApp will now share user phone numbers with Facebook, for the limited purpose of providing targeted ads, and giving better friend suggestions. The other change is that WhatsApp will allow businesses to communicate directly with their customers through WhatsApp.
Also, the difference between the blogpost and the actual Policy can be considered to be false advertisement. This was in fact one of the major allegations against the policy of Uber, which advertised itself to be the ‘safest ride’, when in reality it did not take basic measures like conducting driver background checks. In fact, its terms and conditions at the time refused all responsibility for passenger safety. This resulted in a 28 million dollar settlement in California, and forced Uber to adopt more responsibility for the passenger’s safety. WhatsApp’s privacy promises seem to have taken the exact same turn.
Ambiguous terms of the policy question end-to-end encryption
i. One controversial statement in the policy is that: ‘…your WhatsApp messages will not be shared onto Facebook for others to see’. Meaning that while your WhatsApp messages will not be shared ‘onto’ Facebook, the messages can be shared ‘with’ Facebook. The statement goes on to say ‘In fact, Facebook will not use your WhatsApp messages for any purpose other than to assist us in operating and providing our Services …’ Clearly, Facebook can use your WhatsApp messages to assist in operating and providing services.
ii. The policy says it does not retain user messages in the ‘ordinary course’ of providing services. Does this mean that in situations ‘out of the ordinary’, WhatsApp can collect user messages?
iii. The policy also states that popular media files being shared, like videos and pictures, are retained. This implies that the WhatsApp messages being sent are being subjected to some kind of monitoring or filtering, without which such videos or pictures being sent cannot be identified. Does this mean the promise of end-to-end-encryption does not, in reality, guarantee user privacy like WhatsApp claims?
The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject.