Besides Justice Misra, the bench includes Justice A.K. Sikri, Justice Amitava Roy, Justice A.M. Khanwilkar and Justice Mohan M. Shantanagoudar.
Tuesday was the second day of the hearing and further hearing would take place after top court reopens after summer vacations. On Monday, the court had asked WhatsApp why it changed its policy of non-sharing of data of users after its acquisition by Facebook ito permit sharing of the attributes of its users.
Resuming his arguments on the maintainability of the petitions challenging the Delhi High court verdict, senior counsel K.K. Venugopal, appearing for Facebook, said: "We can file an affidavit stating that not a single piece of information has been shared with anybody. Even I cannot access the information if I want to. There is no element of human intervention in the process. Machines take care of this."
He said that regulations framed under the Information Technology Act in 2009 and 2011 covered WhatsApp - a position contested by the petitioners who are contending that these regulations have been outpaced by the technological advancements.
Reiterating that it was in no position to go into the contends of the messages exchanged between its users as they were in encrypted form, senior counsel Siddharth Luthra, appearing for WhatsApp, told the bench that it was not generating meta data and all that was being shared was contact details, profile photo and status of the users of the App.
Lawyer Madhvi Divan, appearing for the petitioners, said that WhatsApp was using public resource like spectrum and was performing public functions.
Comparing it with telephone services, Mr Divan said while one was paying for availing telephone services, WhatsApp was free but describing its operation as "economic espionage in the name of free service", urged the bench to look at their business model.