Centre used IT Act powers to block apps
The central government has banned 59 mainly Chinese mobile applications such as Tik-Tok and WeChat, 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.
This step was taken, according to government statement, because the Centre had information that the app companies are engaged in activities prejudicial to the sovereignty and integrity of India, defence of India, security of state and public order.
The ban has raised a slew of legal questions.
Section 69A of the IT Act provides for the central government to issue directions for blocking public access to any information through any computer resource. This is the provision which has been relied on by government agencies in the past to take down online content.
The section also sets out the grounds on which such a step can be taken - - in the interest of sovereignty and integrity of India, defence of India, 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 provision mandates that the reasons for blocking such content have to be recorded in writing.
The procedure to be followed for blocking such objectionable content is laid down in the 2009 rules.
There are broadly two procedures prescribed under the 2009 rules.
One is when 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 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 who has hosted the information before giving the green signal to block the objectionable content.
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.
“But the fact of the matter is that, even in cases where hearing is given before imposing a ban, the hearing is most times afforded only to the intermediary and not to the originator or content creator. So we cannot be sure whether a ban is under rules 6, 7 and 8 or under rule 9”, said Gurshabad Grover, research manager at the Centre for Internet and Society..
How will the blocking be implemented?
“It will be implemented in two ways. One, the government will ask Apple and Google to take down these apps from their online stores. So nobody can download the apps from now on. Second, it can ask Internet Service Providers (ISPs) to block traffic to the apps. This will ensure that continued use of app is not possible”, Grover said.
Where is the order blocking the apps?
One crucial aspect which has been pointed out is that no details have been made available in the public domain on the ban except what has been stated in the government statement. The order issued by the government blocking the apps is not available publicly.
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.
“This is the reason why none of these government orders are publicly available. This, in turn, is a roadblock to challenge such orders particularly when it affects the right of citizens other than those directly involved”, Grover said.
Since the order is not available, the exact reason cannot also be deduced except that it is on the grounds of national security.
Brijesh Singh, inspector general of police, Maharashtra, cited the potential security issues associated with such apps.
“During hostilities and conflict between China and other countries, data from these apps will put the Chinese regime to a 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 ubiquitous 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 rapid and thorough assessment of Chinese apps from the point of view of national security as well as individual privacy is the urgent need of the hour”, Singh said.
Some have pointed out that such a ban affects freedom of speech of people who use such apps to voice their opinion or showcase their creativity. Concerns have also been raised that it stifles access to information.
“Many of these apps are used by people to express their opinions and showcase their talent. A ban on them could be construed as affecting their right under article 19”, Grover said.