While it is clear that messaging apps like WhatsApp, Signal, and Telegram fall within the scope of IT rules (IT) 2021, Apple’s encrypted messaging service iMessage has fallen into a gray area.
The Hindustan times quoted an unnamed official who said iMessage is not required to adhere to the rules, but another IT department official told MediaNama that the rules do not discriminate between messaging platforms and apply to everyone alike.
MediaNama has asked Apple for a comment and is waiting for a response.
What are the rules of messaging apps?
The new IT rules, which were announced on February 25th and came into force on May 25th, require, among other things, that messaging apps with over 5 million registered users in India:
Appoint key leadership roles: Social media intermediaries must appoint a Chief Compliance Officer, Node Contact Person, and Resident Complaints Officer, all of whom are India based and employees of the platform. While WhatsApp and Telegram both Fulfills with this requirement a few days after it came into force Signal and Apple still have to do this.
Activate traceability: Messaging apps must also allow identification of the first sender of a message. No major messaging platform has ever met this requirement. WhatsApp has sued the Government of India, arguing that the traceability mandate requires the platform to break end-to-end encryption for all of its users, violating users’ right to privacy and freedom of expression and expression and beyond the scope of the Mother law.
IMessage’s opaque user numbers
The aforementioned provisions of the IT rules only apply to platforms with more than 5 million registered users in India. While WhatsApp is good above that mark, there are no exact numbers on Apple’s iMessage user base in India.
The iMessage service is available to anyone with an iPhone or Mac. As of April 2021, the iPhone market share in India will be roughly 3 percent. Since it’s over 760 million Smartphone users in India, a rough estimate would put the number of iPhone users at 22 million users. This would suggest that iMessage is crossing the threshold to become significant social intermediaries, but it’s important to note that iMessage is an optional service which iPhone users can activate.
If we assume that over a quarter of iPhone users in India (5.5 million) have their iMessages turned on, which is a reasonable assumption, then iMessage falls within the scope of the rules and must allow traceability and staff to be appointed three leadership roles.
Is Apple or iMessage the go-between?
The rules state that “a major social media intermediary who provides services” mainly in the nature of messaging to enable identification of the original creator. ”If Apple is viewed as an intermediary here, it is not qualified because its primary role is not to provide messaging services. Apple is first and foremost a smartphone manufacturer and iMessage is a small part of its offerings.
The unnamed official, who spoke to the Hindustan Times, said that “services like iMessage do not fall under the traceability clause as the major social media intermediaries in the form of messaging services must meet it.”
However, if we are on definition an intermediary according to the IT Act 2000, iMessage itself is considered an intermediary. This is a more reasonable assumption because if not, WhatsApp, which is owned by Facebook, can claim that Facebook is the go-between and its main service is not messaging.
Yes or no?
While not as straightforward as it is with WhatsApp, Apple’s iMessage seems to fall within the scope of IT rules for two reasons: 1) iMessage probably has over 5 million registered users in India and 2) it is an intermediary providing services mainly in India Form of messaging.
On a separate note, Apple has complied with some of the provisions of the IT rules that apply to its Apple TV + streaming platform. According to the rules, streaming platforms must be part of a self-regulatory authority. By joining the Digital Publisher Content Grievances Council (DPCGC) earlier this month, Apple is fulfilling this requirement.
Effects of non-compliance
According to Rule 7 of the IT Rules 2021, non-compliance would mean that platforms would lose their Safe Harbor protection and their intermediary status for the duration of the existence of the rules. This means that they would be just as liable for user content and messages as publishers.
Rule 7: Failure to Comply with the Rules. — If an intermediary fails to comply with these rules, the provisions of Section (1) of Section 79 of the Act will not apply to that intermediary and the intermediary will be liable to prosecution under all currently applicable laws, including those of the Act and the Indian Criminal Code.