How not to tame the digital dragon
The arbitrary ban on 59 web services undermines legal processes and democratic norms
Earlier this week, on June 29, a dramatic press release was issued by the Ministry of Electronics and Information Technology (MEITY) directing a ban on 59 smartphone applications, many of them web services. This includes TikTok, a popular social media platform; the UC Browser, a preferred web browser for low budget smartphones; and CamScanner, which is used to convert images into shareable documents. In one fell swoop, this singular act of web censorship in India has impacted more people than ever before. Beyond the geopolitical and economic impact of this ban, concerning questions arise as to its legality and the measure’s impact on democratic norms.
The first concern arises due to the lack of transparency in website blocking. Prior to adverting to the legal provisions that provide for the government to issue such directions for blocking, let us look at the press release. Even prior governments have made press releases such as when, in August 2012, a decision was made to block around 245 webpages to prevent disinformation that purportedly was causing the exodus from Bengaluru of Indians belonging to the north-eastern part of the country. The relevant order mentioned several grounds, such as defence and integrity of India, public order and even security and privacy of users. The directive was premised on specific recommendations by the Indian Cyber Crime Coordination Committee at the Ministry of Home Affairs, reports received by our premier cybersecurity body, CERT-In, and debates in Parliament.
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Lack of examination, debate
This time, recommendations by the Ministry of Home Affairs appear to have been a pivotal document. The Ministry’s assessment may not have been technically examined or debated on the floor of the house. Hence, the need for disclosure of these recommendations gains primacy.
Further, more importantly, the legal order by itself has not yet been published or been made publicly available. Disclosure of this order is necessary because the nature of the action of blocking impacts the right not only of the owners of these smartphone applications, but the public’s fundamental right to receive information. Here, the facts as they stand are that the only publicly available document available at present is the press release which, by itself, is not a substitute for a legal order.
Imperative for disclosure
The imperative for disclosure becomes clearer on a joint reading of the Shreya Singhal (at Para 109) and Anuradha Bhasin (at Para 152(a)) judgments. The first concerned the constitutionality of Section 66A under which the Supreme Court, while upholding the blocking powers of the government, reasoned that the writ remedies would always be available to an aggrieved person. Hence, to approach a High Court in a writ, the petitioner would require the availability of the legal order. This need for public disclosure prior to placing any restriction on Internet access (of any scope or nature) has been expressly directed when the Supreme Court examined the scope of the telecommunications shutdown in Jammu and Kashmir. Here, citing a solitary rule from the process devised by the government won’t be of much assistance.
Second, proceeding to the more substantive aspects of the action, it seems to contain fairly obvious flaws. The first is with respect to the adherence to the prescribed power under Section 69A of the Information Technology Act, 2000 that permits the blocking of information that falls within specific grounds that need to be invoked when it is “necessary and expedient”.
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Further, the process for this is required to be created under the second sub-clause for which the government made the Website Blocking Rules, 2009. While the principal power and the rules are far from perfect, larger questions do arise from the press release by MEITY. The first is that the so-called “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.
No mention of ‘China’
For those who may state that the ban was necessary due to China’s aggression along the border, or specific threats to our cybersecurity, the word, ‘China’ is not even mentioned within it. This becomes more curious because there appears to be a group determination of the 59 applications. Each application is distinct in its operation; many of them come from different companies and developers. Hence, if the basis of the grouping is an economic reprisal against China, the text of the order does not state any such thing.
Several other minor defects exist; however it is more important to focus on the larger point about the necessity to maintain legality.
The principle of legality is inherent to a republic that is governed by laws and not the whims of powerful individuals in high office. It is the hallmark of a democracy that laws are validly enacted and do not violate fundamental rights. To circumvent them to reach a convenient goal would amount to undermining the constitutional framework of India.
Today, there are two concerns which must be legitimately addressed through legislation. The first is connected with privacy and data protection where the Union Government’s record has been poor. A watered down version of a Data Protection Bill is pending before a parliamentary committee and awaits enactment.
The second is to commence an exploration into whether investments and operational control pose cybersecurity concerns or intersect with sectors of foundational and emerging technologies. This may be done through legislation and creation of an institutional process that may draw inspiration from the Committee on Foreign Investment in the United States. Both these measures will suitably empower the government to act within the bounds of law and act as per evidence to reach the goals they so desire. This will be without resorting to ad-hoc actions that create a worrying precedent and expansion of uncanalised state power over the Internet and technology businesses.
Forsaking our democratic values is too high a price to pay if the goal is to neuter the designs of an aggressive single-party state. To protect individual liberty and national interests, India must proceed with caution and remember the age-old adage, of being careful of whom we hate, for we may end up just like them.
Apar Gupta is a lawyer and executive director of the Internet Freedom Foundation