- Section 69A of the IT Act
- Recent order blocking the apps
- Concerns of India
- Way Ahead
Resisting Chinese Digital Encroachment
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On June 29, the Ministry of Electronics and Information Technology banned 59 mobile apps for safety, security, defence, sovereignty & integrity of India and to protect data & privacy of people of India. The government has banned mainly Chinese mobile applications such as Tik-Tok invoking its powers under section 69A of the Information Technology Act of 2000 and provisions of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules of 2009 to block the apps.
Section 69A of the IT Act:
- Section 69A of the IT Act 2000, provides for the central government to issue directions for blocking public access to any information through any computer resource.
- This provision has been relied on by government agencies in the past to take down online content.
- The grounds on which such a step can be taken are: in the interest of sovereignty and integrity of India, defence of India, the security of the country, friendly relations with foreign states or public order or for preventing incitement to the commission of any offence relating to above.
- The procedure to be followed for blocking such objectionable content is laid down in the IT rules of 2009:
1. First Method:
- The intermediary or person who has hosted the information is given a hearing before the content is blocked (Rules 6, 7 and 8).
- The procedure is initiated by a complaint sent by any person to a nodal officer, who is an officer appointed by the concerned ministry or department of the central government or the state government/ union territory.
- If after examining a complaint received by the nodal officer, the concerned ministry or department is satisfied that the grounds provided under section 69A exist, the complaint is sent to a government committee through a designated officer.
- The committee which comprises the designated officer and officials of the law ministry then gives a hearing to the originator of the information or intermediary before giving the green signal to block the objectionable content.
2. Second Method:
- The second method is to deal with emergency cases in which the designated officer can issue an interim order blocking the content without giving a hearing to the originator or intermediary (rule 9).
- The hearing will have to be held subsequently after which the interim order passed by the designated officer is confirmed or revoked.
Recent order blocking the apps:
- No details have been made available in the public domain on the ban except what has been stated in the government statement.
- So it cannot be said whether a ban is under rules 6, 7 and 8 or rule 9.
- Rule 16 of the 2009 rules mandate that strict confidentiality has to be maintained when it comes to complaints received and action taken regarding such a ban.
- The government will ask Apple and Google to take down these apps from their online stores so that nobody can download the apps from now on.
- It can ask Internet Service Providers to block traffic to the apps to ensure that continued use of the App is not possible.
Concerns of India:
- Data from these apps could put the Chinese regime to great geopolitical advantage.
- It can have a real-time picture of various strategic and tactical initiatives undertaken by the other country for its defence and combat preparedness.
- Apart from the data gathered in due course of business, deliberate vulnerabilities left in the software and hardware of cheap Chinese smartphones can lead to severe compromise of individuals as well as organisational information.
- Ill-protected and insecure coding of Chinese operating systems and apps can also allow for further targeted attacks by providing an initial foothold into the victims’ devices.
- A section of society feels that such a ban affects freedom of speech of people who use such apps to voice their opinion or showcase their creativity and it restrains access to information.
- A ban on the Apps could be construed as affecting the right of users under Article 19 (Freedom of speech and expression).
1. Lack of Transparency:
- There is a lack of transparency in website blocking. The recommendations by the Ministry of Home Affairs appear to have been a pivotal document and may not have been technically examined or debated on the floor of the house.
- Further, the legal order by itself has not yet been published or been made publicly available.
- This violates the fundamental right to receive information, not only of the owners of these smartphone applications but the public.
2. Imperative for disclosure:
- The Supreme Court while upholding the blocking powers of the government under Section 66A of the IT Act, reasoned that the writ remedies would always be available to an aggrieved person.
- This need for public disclosure before placing any restriction on Internet access has been expressly directed when the Supreme Court examined the scope of the telecommunications shutdown in Jammu and Kashmir.
- To approach a High Court in a writ, the petitioner would require the availability of the legal order.
3. No pre-decisional hearing:
- The ban has been imposed without any form of pre-decisional hearing.
- Such a process would have required a show-cause notice to be served, offering the aggrieved party a detailed opportunity to defend itself; this would have been followed by a detailed legal order.
- This process can only be exempted when there exists an emergency; however, there is little in the press release to indicate whether this was indeed an emergency and, if yes, what its specific cause was.
- India must not contribute to the success, proliferation and performance of digital weapons that will be ranged against it.
- China’s tech must be recognised as one, which has had records of interfering in another country’s political processes (WeChat controversy Canada elections), and to intercept content beyond its jurisdiction, and adopted social media platforms to target dissidents abroad, and spread disinformation.
- The presence of China’s hardware and platforms in India’s digital ecosystem constitutes a long-term security threat.
- India must develop indigenous technologies, create the state of the art standards and infrastructure, reduce its economic and technological interdependence, and emerge as a technology superpower.
- India must adopt a strong version of a Data Protection Bill, with necessary changes, which is presently pending before a parliamentary committee and awaits enactment.
- It is very important at the times when there are concerns about unethical applications of emerging technologies like facial recognition systems and Data theft.
The decision of the Indian government to ban Chineses Apps may not cause much harm to Chinese platforms in terms of revenue, but in terms of value and image of China, it has a tremendous effect. India must work with its allies and partners through new initiatives such as the Global Partnership on Artificial Intelligence to compete with and contain China. Public opinion favours this and as India restarts its pandemic-stalled economy, India should create value chains and contain the ones that are from the dubious origin.