On the evening of 29th June 2020, The Ministry of Information Technology, invoked its power given under the Information Technology Act, 2000 [“IT Act”] read with the relevant provisions of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009 [ “2009 Rules” and given the emergent nature of threats of data privacy decided to ban 59 apps.
As an emerging market of apps and technological advancements, India is catching the eyes of many. With that kind of market attention, it is impervious to the government to take some strict measures for data privacy and data protection of the personal data of the citizens. These data can be combined and can become a threat to national sovereignty as well as integrity. There have been several reports of consumers as well as experts about the misuse of access permissions some mobile apps take from the users for stealing and surreptitiously transmitting users’ data in an unauthorized manner to Chinese and Pakistani servers. These individual data might not look harmful at first glance, but when the data of millions of Indian smart phone users are combined it can cause serious loss of sensitive information which ultimately impinges upon the sovereignty and integrity of India.
Adding to the concerns, the controversial National Intelligence law of China which was introduced back in 2017 essentially gives power to the Chinese authorities to search and take any data of citizens or corporations to gather intelligence for espionage. This fact combined with the fact that the data of Indian citizens which they create in these Chinese apps are stored on the servers in China therefore making it easily accessible to the Chinese government whenever they want. Looking at the current state of Indo-China relationships, it is not smart to let the Chinese have the access to the data of millions of Indian citizens.
LEGAL FRAMEWORK REGULATING THE BAN ON APPS
Section 69-A of the IT Act is the regulatory law regarding blocking public access to any kind of information through a computer source. The commuter source includes access to information on a mobile application. The law allows the central government or its designated officers to issue any directions for blocking of information generated, transmitted, received, stored, or hosted in any computer source.
The provision lays down the interest of sovereignty and integrity of India, defence of India, the security of the State, friendly relations with foreign States, public order or for preventing incitement to the commission of any cognizable offence as the grounds on which information access can be blocked.
The Procedure and Safeguards for Blocking for Access of Information by Public Rules, 2009 lays down detailed procedures for blocking of online information. A direction banning access to information can be issued on a request from a Nodal Officer or the order of a competent court. In the current case, provisions regarding requests from a Nodal Officer will be relevant.
A. On a request from a Nodal Officer-
Rule 4 of the 2009 Rules mandates every organization i.e. Ministries and departments of government, State governments, and Union territories to designate a Nodal Officer. Any person may send the complaint to the Nodal Officer for any information to be blocked. The complaint is forwarded to the Examination Committee if the Nodal Officer finds the request valid. Such a complaint has to mandatorily come through the Nodal Officer.
An Examination Committee evaluates the request and assesses whether the content falls within the grounds mentioned under Section 69-A and serves notice to such person or intermediary who is in control of the objectionable content.
The committee then submits its recommendation based on its evaluation to the Secretary, Department of Information Technology. Orders blocking such information are passed upon approval of the Secretary. Such orders have to be reasoned which provides the basis on which information has been blocked and will have to go for reassessment to a review committee as per Rule 14.
Exception- Blocking in case of Emergency
Rule 9 of the 2009 Rules provides for blocking of information in case of emergency. It provides that information can be blocked in case of an emergency where no delay is acceptable and it is necessary and justifiable within the scope of subsection (1) of 69-A of the IT Act. However, such an interim order has to be brought before the committee within 48 hours. Intermediaries can be held liable for non-compliance with the order under Rule 12.
B. By a Court order-
Rule 10 provides for blocking of any information or a part of it by a competent court. When the Court orders blocking of any information, the Designated Officer is required to implement the same immediately upon receiving the certified copy of the order.
The directions to ban access to information are binding on the party that owns the content as well as the intermediaries. The intermediaries are equally liable if they do not block the content once they are notified of the directions as per Section 79(3) (b) of the IT act.
The ban means that these apps will be restricted from been downloading from Play Store and Apps Store and those apps which have already been downloaded and require an internet connection to function, like Tiktok will eventually stop working as the service providers will have to comply with the ban as well. In the short term, the ban will impact a lot of Indian users, content creators, and the Companies as well. Apart from Tiktok, two other apps are more popular and widely used, which are Cam Scanner and UC Browser. But thankfully these apps have a lot of alternatives as well and people will eventually resort to those alternatives.
A lot of litigation is likely to arise due to how the ban is imposed. The Indian government might have a tough time in the court as the procedure under 2009 Rules & the principle of proportionality needs to be satisfied as held in Anuradha Bhasin v. Union of India (2020 SCC Online SC 25).
These companies in the past have seemed rather uninterested in complying with the government directives regarding data security and privacy concerns but now they stand to lose millions of customers overnight & their valuation in China may go down as well. Even if these apps would want to comply with the Indian guidelines, the National Intelligence law of China will not let them have their servers set up in a different country.
The 2009 Rules specifically provide for a defined process of notice, hearing, and reasoned written order. This process emanates from the judgment of Shreya Singhal v. Union of India (AIR 2015 SC 1523) and applies to all grounds for blocking. The concerns regarding how the apps are banned raise certain questions that cannot be overlooked. The process of pre-decisional hearing and hearing the aggrieved parties to defend was surpassed. Also, this cannot be called the emergency exception as the order has not been brought before the committee within 48 hours. Although the argument of the ministry is valid that there was an imminent danger to national security, the principles of natural justice could have been complied with afterward as well. We don’t know yet if the ban is going to be permanent or temporary but if these apps want to come back, they will have to comply with Indian guidelines and sever their ties with the Chinese servers.
The government’s concern is if the Chinese government can use the apps to control the information and the thoughts of their own people through the internet, then they would not hesitate to do the same for the Indian Citizens. The timing and outright manner of blocking suggests association between border tension along with the privacy concerns.
However, bans are absolute prohibitions that must be adopted as the last resort. Regulatory interventions including fines and directions following the legislative procedure in proportionality with the threat must be adopted at first. Such an absolute restricting order at the part of the government sabotages the legitimate concerns in the long term and is highly unlikely to sustain the judicial review as it goes against the constitutional principles.
Mudit Burad (National Law University, Jodhpur)
Devang Bansal (National Law University, Jodhpur)