The government’s decision to block 59 Chinese apps has once again spotlighted the vulnerability of Internet freedom at a time of national security. The Hindu's Strategy & Digital Editor Sriram Srinivasan moderates a discussion with Arghya Sengupta (Research Director at the Vidhi Centre for Legal Policy) and Raman Chima (Asia Policy Director and Senior International Counsel at Access Now) to explore the delicate balance between freedom of expression and national security. Edited excerpts:
The Centre’s move to block 59 Chinese apps has brought to the fore the inherently tricky ‘national security versus digital rights’ question. How do you view this?
Arghya Sengupta: It is important first to clarify whose rights we are talking about. If it is the right of (these) Chinese companies, then of course, these rights have been affected. If it is the rights of Indian individuals who use platforms like TikTok either to run their business or to just become popular, I don’t think there is a rights violation there. I can do the same thing by moving to another platform.
Section 69A [of the Information Technology Act], which has been used, is not a new power that the government is commandeering during a time of national security emergency. It must be a genuine national security risk, and the necessity of blocking the app must be very clearly made out by the government. And that is the way we try and resolve this question of where do we draw the line between this trade-off between national security, which is important, and rights, which are equally important.
Raman Chima: It is important to remember that in a constitutional democracy like ours, but also one that is a signatory to the International Covenant on Civil and Political Rights as well as the Universal Declaration of Human Rights, there is a certain basic understanding that regulation of the Internet or Internet-based services by governments has to respect basic human rights standards. For a government to block service or to block any access to content or take other coercive steps that may intrude upon people’s fundamental rights and freedoms, it has to follow what in international law is often called the three-part test. That requires action that is very clear; that could not have been done by a less intrusive means; and that follows standards of necessity and proportionality. In India, it is very clear that our fundamental right to free speech and expression applies to online content (too). Our own Supreme Court has said that.
The challenge in this particular situation is that the blocking of an entire service and app by the Indian government is a remarkable and a rather extraordinary step. And one would therefore go and ask (whether there were) less intrusive means that could have been followed. And if you do believe, for example, there are other concerns relating to security, which is one of the grounds allowed under Indian law, as well as other larger concerns on data and cybersecurity, which the Indian government does not right now have any legal basis to take clear action on because it itself has not enacted law on that subject, they have to make that information available. It troubles me that that information is not there. And perhaps, in this case, what has happened is that concerns around national security or other geopolitical concerns have intervened to result in censorship administrative action... And that test of whether this is a proportionate restriction perhaps may not have been met.
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More specifically, the use of Section 69A of the Information Technology Act has been criticised in some quarters, with one of the criticisms being that it isn’t designed for data protection compliance. And it is also argued that it is set for more specific violations rather than broad general violations, as you mentioned.
Raman Chima: The fact is that Section 69A has a limited set of defined grounds under which the government can take action. Those are often wide grounds, including security of the state that, as we know, over the last few years, the Union Government as well as several State governments have unfortunately taken very wide views of, but data protection isn’t one of them. And also, if you look at other actions taken by other regulators, what they initiate is action under a data protection framework where they investigate the entity, see whether other mechanisms could be followed (orders, fines etc).
And instead, we have jumped here to the topmost level, and more importantly, even under our existing legal framework regarding blocking of content, there are two mechanisms — there is the normal process by which a government department complains to the Central government officer and a committee reviews it, and an emergency process by which orders are issued and then a subsequent review is taken. They have done an emergency blocking order, and then said these platforms should perhaps come to them and make a case as to why they should be unblocked and these interim orders could be overridden. And more importantly, ultimately, Section 69A is a censorship power, a controversial one that is not well designed to protect people’s rights.
Arghya Sengupta: There is a wider point that Raman makes that I agree with, which is the fact that 69A is perhaps not fit for the purpose. But I think that the larger point is that the banning of the apps, as we all kind of have guessed, has become a proxy for a larger geopolitical battle. And I think that whenever we discuss the question of how the apps were banned, and the processes that were followed, while those are relevant questions, and we must ask them, but I think this is a larger question that needs to be asked in terms of both Internet freedom in India as well as in China.
How do you both see the system going from here to becoming a fairer system?
Raman Chima: The first step in that path is something that the government itself could do. Currently, when the Government of India issues blocking orders under Section 69A of the Information Technology Act, it asserts secrecy and confidentiality in those orders. This is, in fact, not something required by Parliament. The government should immediately stop asserting that privilege, so that the public indeed knows what is being blocked and for what reason. I would also argue that that is now a constitutional requirement. The Supreme Court in the issue of Internet shutdowns in the Anuradha Bhasin judgment said very clearly that any order blocking people’s rights to liberty, especially in relation to the Internet, requires to be published.
It can also undertake broader reforms, as well as a review of Section 69A itself. As somebody who has worked in the technology sector in both industry as well as now nonprofit and human rights roles, I can tell you that the blocking list in India is actually a shockingly long one, perhaps tens of thousands of websites that have been blocked over a period since the late 1990s. That is not a position India wants to be in. India never wants to be compared to China, or other totalitarian despotic regimes.
The reality today is that on cybersecurity, we don’t have a clear strategy in architecture. The Indian government has tried to do its best over the last few months to consult on a new national cybersecurity strategy, so it is clear as to who is in charge, what legal powers they may have, although again, legal powers are a subject determined by Parliament, as well as who responds, where does the buck stop? That, unfortunately, is not clear right now.
China is intimately involved in the global technology supply chain. That is not a fact that is going away. And, therefore, if we are saying that due to legitimate border or other conflict concerns, as well as perhaps other national strategy, we wish to contain or restrict that in a manner that protects human rights but also in a manner that is effective, we need an open conversation on what that process is. That is not happening right now.
Arghya Sengupta: There has been a mindset within the government, particularly on issues relating to national security, that agencies can work best when they work outside the law. But if you look at the U.S., national security agencies obviously can work well within the four corners of the law, while at the same time ensuring that they are no less and perhaps in some senses even more empowered as far as their surveillance functions are concerned. So I think overall, there needs to be a change in mindset for national security agencies.
They must all be brought under a legal framework where we understand what everybody’s powers are. We just have to know the extent of their powers. And if they have overstepped their bounds, then there must be consequences as there are consequences for everyone else.
If we are going to look at it in terms of Section 69A, we can discuss it, but the point is that the Supreme Court in the Shreya Singhal case did indeed uphold Section 69A while striking down Section 66A. So the point is that we need to think about a larger change of mindset.
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We have seen one part of the ecosystem, where some homegrown Indian companies are probably rejoicing at the decision, but there are broader long-term consequences...
Arghya Sengupta: The fact of the matter is that the banning of the Chinese apps is an incident of a larger dispute. And if that dispute resolves itself, this will resolve itself too. At the end of the day, there is a reason why those apps are so popular right? It is because they work. And the reason why Chinese products are in the global supply chain is because they are producing a certain quality at a certain price. What Indian tech companies should essentially be looking at is in trying to improve their products, so that they can compete globally. Currently, we are nowhere close.
We have to ask ourselves collectively as to whether we can preside over these years of technological hardship where products from China and other countries which are cheaper will not be available because of hopes of a brighter tomorrow. Number two, if they [the officials] have come to the conclusion that this is a price that we are willing to pay for longer term gains, then in that case, we have to set in motion certain sets of policies to ensure that Indian industry is appropriately incentivised.
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Raman Chima: By making it a little bit unfortunately too clear that this is due to geopolitical reasons, India [becomes] vulnerable from a trade law perspective. It allows China to claim the moral high ground in trade talks. That is just a fact. On larger issues of our software development and supply chain, we also need to have an honest conversation about what is working, what is not working.
Today, Indian apps servicing a global market could be forced to comply with government orders issued in India that apply to residents elsewhere. So we do need to have an honest conversation around privacy and data that recognises that we are part of a global interlinked Internet. That is not yet happening.
Raman Chima is Asia Policy Director at Access Now; Arghya Sengupta is Research Director at the Vidhi Centre for Legal Policy