Can WhatsApp chats be accessed during an investigation?

Almost everyone in the world who has access to a smart phone is using WhatsApp. For the miniscule of people who don’t know what WhatsApp is, WhatsApp is free to download messenger application for smartphones. WhatsApp uses the internet to send messages, images, audio or video. The service is very similar to text messaging services, however, because WhatsApp uses the internet to send messages, the cost of using WhatsApp is significantly less than texting.

We have been recently hearing a lot of cases where WhatsApp chats have been accessed during an investigation. Concerns were then expressed over the safety of WhatsApp chats on social media. Some have questioned whether Facebook was making a genuine claim that WhatsApp’s privacy is guaranteed by end-to-end encryption, citing that probe agencies are now using WhatsApp chats as evidence.

What do you mean by self-incrimination?

• Self-incrimination is the act of exposing oneself generally, by making a statement, to an accusation or charge of crime; to involve oneself in a criminal prosecution or the danger thereof.
• Self-incrimination can occur either directly, by means of interrogation where information of a self-incriminatory nature is disclosed or indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.
• In simple words, it is the act of exposing one’s own self to criminal prosecution. The Indian Constitution provides immunity to an accused against self-incrimination under Article 20(3) by stating that, ‘No person accused of an offence shall be compelled to be a witness against himself’. 
• The Supreme Court widened the scope of this immunity by interpreting the word ‘witness’ to include oral as well as documentary evidence so that no person can be compelled to be a witness to support a prosecution against himself. 

When can prohibition on self-incrimination not be applicable?

• This prohibition cannot be applied in cases where an object or document is searched or seized from the possession of the accused.
• The law does not bar the medical examination of the accused or the obtaining of thumb-impression or specimen signature from him. This immunity is available only against criminal proceedings.
• The Supreme Court made it clear that in order to claim immunity from being compelled to making a self-incriminating statement, it is necessary that a formal accusation must have been made against the person at the time of interrogation.
• One cannot claim the immunity at some general inquiry or investigation on the ground that his statement may at some later stage lead to an accusation.
• Article 20(3) does not apply to physical evidence since it is merely identificatory in nature.
• Physical evidence, like a blood sample or a fingerprint, does not involve use of mental faculties and it does not lead to any communication based on personal knowledge of the accused which may incriminate him/ her.
• While in the case of testimonial evidence, an accused can give different statements to a question asked of him/her, in the case of physical evidence, the intrinsic character of the evidence cannot change. Thus, furnishing of physical evidence does not exactly amount ‘to be a witness’.
• For testimonial evidence to be self-incriminatory, it should have the tendency of incriminating the accused. However, it is imperative to note that self-incriminatory material is not limited to merely confessions, but also extends to answers which ‘furnish a link in the chain of evidence’ to support a conviction.

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Reference to some earlier cases

In the case of Balasaheb v. State of Maharashtra, it was held that a witness in a police case, who is also an accused in the complaint case for the same incident, cannot claim absolute immunity from testifying in the case. However, he may refuse to answer those questions which tend to incriminate him.

In M.P. Sharma v. Satish Chandra, it was held that a person whose name is mentioned in the first information report as an accused can claim protection under Article 20(3). The privilege against self-incrimination is available at both trial and pre-trial stage i.e. when the police investigation is going on and the person is regarded as an accused, or even if his name is not mentioned in the FIR as an accused.

In State of Bombay vs Kathi Kalu Oghad case, it was held that it must be necessarily shown that the witness was compelled to make a statement likely to incriminate him. Compulsion is an essential ingredient but if a person makes a confession without any inducement, threat or promise Article 20(3) does not apply. The accused may waive his right against self-incrimination by voluntarily making an oral statement or producing documentary evidence, incriminatory in nature.

In the case of Selvi v. State of Karnataka, the Supreme Court found that it is a requisite compulsion to force an individual to undergo narco-analysis test, polygraph tests and brain-mapping. The answers given during these tests are not consciously and voluntarily given, so the individual is unable to decide whether or not to answer a question, hence it amounts to testimonial compulsion and attracts protection under Article 20(3). The Court stated that narco-analysis test is a cruel and inhuman treatment which violated the right to privacy of an individual. That courts cannot permit administration of narco-analysis test against the will of the individual except in cases where it is necessary under public interest.

Can a person be compelled to unlock his/her phone to access WhatsApp chats during an investigation?

As, Article 20(3) protects an accused from being compelled to give ‘testimonial evidence’ in relation to self-incriminatory material, it can be concluded that providing the password of a phone or unlocking it will amount to testimonial compulsion which is covered by Article 20(3).

Unlocking a phone would communicate three kinds of personal knowledge to the police:

• the suspect knows the password
• the files on the device exist and
• the suspect possessed those files.

Unless the investigating authority can show it already knows this information, the communicative aspects fall within Article 20(3)’s protection. Therefore, unlocking a phone is not as innocent as providing a fingerprint. It amounts to providing information based on the personal knowledge of the accused, and is, therefore, testimonial in nature.

As Article 20(3) provides protection against self-incrimination and gives the accused the right to remain silent over any matter which tends to incriminate him, the accuses cannot be forced to unlock his/her phone to access WhatsApp chats during an investigation. However, testimonial evidence can be compelled if it is for the purpose of comparison with facts that are already in the possession of investigators. This exception is similar to the ‘doctrine of foregone conclusion’ developed by US Courts whereunder the State can compel the accused to furnish testimonial evidence if it already knows the information conveyed, making it a ‘foregone conclusion’.

For this exception to apply, the authorities would have to establish that they have independent knowledge that:

• the phone belongs to the accused
• they can independently identify what files will be discovered from the phone; and
• the documents they are seeking exist on the phone.

Can service provider be directed to provide WhatsApp Chats during an investigation?

According to Section 91 in The Code of Criminal Procedure, 1973, whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

So not the issue is whether the service provider WhatsApp itself can be ordered to provide the chats during an investigation by an order under Section 91 in The Code of Criminal Procedure, 1973 or not?

WhatsApp had already clarified before that, WhatsApp protected messages with end-to-end encryption so that only the individual and the person they are communicating with can read what is sent, and nobody in between can access it, not even WhatsApp. WhatsApp followed guidance provided by operating system manufacturers for on-device storage and they encouraged people to take advantage of all the security features provided by operating systems such as strong passwords or biometric IDs to prevent third parties from accessing content stored on device.

Therefore, in simple words, the service provider WhatsApp itself cannot be ordered to provide the chats during an investigation by an order under Section 91 in The Code of Criminal Procedure, 1973, as it was claimed that WhatsApp itself does not have access to the chats.

Even if some law is enacted to compel WhatsApp to reveal chats to the investigation authorities (which will have to pass the test of not being violative of the fundamental right of privacy), it would be extremely difficult for the police to obtain a summoning order under Section 91 of the Code of Criminal Procedure (CrPC) for conducting a general search of WhatsApp chats on an accused’s mobile phone to discover incriminating material.

How do WhatsApp chats which are considered private leaked then?

WhatsApp says on its security settings that there is end-to-end encryption for all their messages, but the media and message back-up on Google Drive or any such Cloud services are not protected by WhatsApp’s end-to-end encryption. End-to-end encryption means that the messages are visible only to the sender and the recipient, and not even to WhatsApp.

To access encrypted WhatsApp data, security and investigating agencies can take a user’s phone and create a ‘clone’ of it on another device. This gives them access even to deleted messages with a ‘mirror image’ of a phone after which all data can be transferred to the separate device. Thereafter, it is only a matter of retrieving data which agencies do by involving forensic experts. They retrieve all kinds of data like phone call records, messages, images, WhatsApp chats, as well as the data on the phone’s Cloud service, like Google Drive or iCloud, including anything that has been deleted.

Even though WhatsApp chats are inadvertently leaked which are sometimes used as evidence during an investigation, one cannot be forced to submit their phone or WhatsApp chats if it would self-incriminate them.

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