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This week the Ministry of Electronics and Information Technology (MeitY) issued a press release notifying blockage of 118 mobile apps citing the apps engaged in activities prejudicial to sovereignty and integrity of India, defense of India, security of state and public order. This is the third wave of mobile apps following the ban of 59 apps in June and 47 apps in July.
Like the previous two instances, the Ministry’s announcement did not mention China even though all apps featuring on the list were apps developed or published by Chinese entities, the most prominent ones being PUBG Mobile, PUBG Mobile Lite, Baidu and AliPay. It is the latest development in India and China’s deteriorating bilateral relations due to the latter’s expansionary policies.
(Image Credits: Reuters)
Government’s Power to Ban
MeitY exercised its powers under Section 69A of The Information Technology Act, 2000 (IT Act) that allows Central Government or any of its authorized officers to direct any agency of the Government or intermediary (in this case Google and Apple) to block access by the public of any information generated, transmitted, received, stored or hosted in any computer resource in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence related to the above if the Central Government or any of its authorized officers are satisfied that it is necessary or expedient so to do.
While Section 69A lays down the substantial law granting power to the government to block internet content on certain grounds, the exercise of such power is subject to the procedural law laid down by The Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 (Blocking Rules).
The Rules lay down the procedure to be followed in normal circumstances and emergency cases. In normal circumstances, any person may send their complaint to the Nodal Officer of the concerned Ministry or Department of Government who, if satisfied that there’s a need to take action will send a request to a Designated Officer of the Central Government. The request will be examined by a Committee headed by Designated Officer consisting of officials from Ministries of Home Affairs, Law and Justice, Information & Broadcasting and CERT-In. The Committee will issue a notice to the responsible person or website to make an appearance and submit a reply. Rule 11 of the Blocking Rules state that the request received from Nodal Officer must be decided by the Committee within 7 days. The final decision regarding blocking of information will be made by the Secretary, Department of Information and Technology.
In emergency cases, where no delay is acceptable, the Designated Officer can directly make a request to the Secretary, Department of Information and Technology, who may issue an interim direction to block such information without giving the person or intermediary an opportunity to be heard. The process before the Committee must be initiated within 48 hours of issue of such interim directions and a final order must be passed only on receipt of recommendations of the Committee by the Secretary, Department of Information and Technology.
A Review Committee will meet at least once in two months to review all directions issued under Section 69A of IT Act and may set aside any orders of blocking and reinstate the website or app.
Selective Applicability?
While MeitY intimated a blanket ban on 118 apps through its press release, we are yet to see a detailed and reasoned order dealing with each app on a case by case basis. It can be speculated that the press release relates to an interim order and that the blocked apps could make a comeback in the future. Previously, the Committee had invited developers of 59 apps following the ban to submit their clarification. A similar process could be followed for these 118 apps too.
The press release states MeitY proceeded based on complaints and reports indicating these apps were stealing and transmitting users’ data in an unauthorized manner to servers located outside India and the profiling being done was detrimental to national security and defense of India. However, in the absence of an order, the exact details and reasons remain unknown. The Press Release does not state what expedient circumstances made it necessary to utilize the emergency powers. The exception to the rule of issuing show cause notice and hearing the party beforehand has been made the norm in these circumstances. In Shreya Singhal vs. Union of India, the constitutionality of Section 69A was upheld solely because of the procedural safeguards provided by the Blocking Rules. The existence of an emergency clause must not lead to circumvention of the ordinary procedure laid down by the Rules.
The timing of the ban also raises concerns. These apps have been available to users for a long time and if the government is to be believed, they have been surreptitiously transmitting data for a long time too. However, up until now, we did not see them getting blocked or heard privacy concerns being raised by the government. Rather we saw court documents and government notifications being uploaded using CamScanner. The hallmark of rule of law is equality before law and equal subjection to law. Since the list only contains Chinese apps, it can be speculated the Government has drawn a distinction between apps of Chinese origin and other apps due to the ongoing border skirmishes. If and when the issue reaches the Courts, it will have to be decided whether such a distinction passes the muster of judicial scrutiny.
A Win for Citizens?
While it is good to see the government taking a proactive approach to data protection and blocking apps that adopt poor data processing and collection practices, its track record with privacy is dismal (something we discussed in this article). The government has still not passed any data protection law. The Personal Data Protection Bill, 2019 is still pending before a Parliamentary Committee waiting for parliamentary approval. While citizens are not at risk from the 224 apps, we are still at risk from millions of other poorly designed apps, not to mention the government’s own surveillance practices.
The slew of bans might also make Indian startups seeking Chinese investments or already having Chinese investments, including the 18 unicorns jittery. It is uncertain what strategy the government adopts to retaliate in the future since there aren’t any popular Chinese apps to ban any more. These entrepreneurs might be the ones with a target on their back during the next round of border transgressions.
The government’s approach of mixing technology and geopolitical matters would also make investors of other countries take into account the foreign relations between the two countries before investing or starting operations in India.
The ‘digital strike’ had consequences for not only for people employed in these companies but also those who used it. For instance, TikTok gave a voice to the unheard and served as a creative outlet for several people. Influencers leveraged their popularity on TikTok to get lucrative advertisement and endorsement deals. Tibetans in India used WeChat to communicate with their family members back home. PUBG Mobile made gaming a more accessible hobby and gave unprecedented popularity to eSports, streamers and Indian game developers. With one (master) stroke the government ended the potential of competitive PUBG Mobile gaming and dreams of those aspiring to become competitive PUBG Mobile players.
Without a detailed order regarding the ban of apps, no aggrieved person can approach the Court to challenge its legality. There can be no examination whether the exercise of the powers was arbitrary or excessive beyond what was required in the public interest.
These bans also set a dangerous precedent for the future that may put freedom of speech and expression and access to free speech and expression at a premium. Blocking information without hearing the other side violates the foundational and fundamental principle of natural justice. Without a privacy law or guidance notes as to how, when and where data can be stored or processed, the exercise of power under Section 69A of the IT Act, especially under the emergency clause by the government will reek of arbitrariness and excessiveness. The current laws are grossly inadequate to safeguard citizens from data breaches and a robust data protection law is desperately needed. An objective and country of origin-agnostic approach must be adopted while analyzing threats to national security posed by apps. Any ban, whether interim or permanent in nature affects not only the operators of the website but also has ramifications for citizens. Finally, the aim of Atmanirbhar Innovation Challenge is to promote and develop apps that find solutions to tech conundrums and not to limit market access and promote apps that mimic existing Chinese apps.
Ravneet Singh is a final-year law student at Campus Law Centre, University of Delhi and holds a B.A. (Hons.) in Business Economics.