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The Chinese authorities claimed “that the ban is not conducive to consumer interests and the market competition in India‘‘. It’s a classic case of the pot calling the kettle black, for it is the biggest censorship regime in the world. Moreover, National Intelligence Law introduced by China in 2017 allows Chinese intelligence agencies to search premises, seize property, and marshal individuals or organizations to carry out surveillance. It gives authorities extensive power to investigate and monitor foreign and domestic individuals and institutions; at the same time giving intelligence agencies legal ground to carry out their work both in and outside China. A Report from the Maharashtra Cyber Department revealed that as many as 40,300 cyber attacks were attempted by China following few days of the border standoff between both the countries. So at a time when tensions are at the boiling point at the border, India has the ‘locus standi’ to be skeptical about the nature of data that Chinese apps have been transferring.
Section 69A of the Information Technology Act, 2000 and its Application in the present case.
“The central government can block, after following due procedure, any information through any computer resource including mobile apps for public access if the government is satisfied that it is expedient to do so in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign countries and public order.”
“There shall be a nodal officer in every ministry whose job is to oversee complaints on any ‘offensive’ subject hosted by a website. The complaint if holds water is forwarded to the designated officer chairing a committee comprising delegates from the Ministry of Home Affairs, Law and Justice, Information and Broadcasting and the Indian Computer Emergency Response Team (CERT-In), which gives negotiator a hearing. The appointed officer after receiving the nod of approval from the secretary of the Department of Information Technology is authorized to block a website.”
“In times of emergency, the secretary of the Ministry of Electronics and Information Technology after receiving recommendations from the designated officer can give instructions to block a website as an interim measure.”
“The blocking request must be brought by the designated officer before the committee within 48 hours of the transit of interim order. A notice is then issued to the website by the designated officer, giving it 48 hours to prepare for the hearing. The IT secretary then has the last say in the recommendation of the committee, and it’s totally his discretion to approve the blocking request or to reject it.”
The latest order banning 118 Chinese apps has been issued under the emergency clause and recourse has been provided to the app companies to appear and submit their clarifications before the committee.
International provisions and case studies
Ji Rong, spokesperson, the embassy of China, in a statement called India’s measure as “selective and discriminatory towards Chinese apps and violative of the WTO rules”. The General Agreement on Trade Services (GATS) is a multilateral agreement made by the WTO that lays down rules covering all international trade services and aims to remove trade barriers. Since India and China are members of WTO; they are obligated to abide by GATS’ norms as well.
Article V (b) of GATS calls for economic integration and provides for the elimination of discrimination among parties through either existing discriminatory measures or new discriminatory measures. But, the aforementioned article has certain exceptions laid down in Article XIV which provides a list of security exceptions to the obligations laid down under GATS. Interpretation of this provision portrays a clear picture that India is justified in banning the apps and that it is protected under this exception and their move isn’t a contradiction to their obligation.
In a similar move, the US has passed a law called “no TikTok on government devices Act” which bars the federal officials from using TikTok mobile applications on their phones due to concerns over data security and fear that their personal information could fall into the hands of government officials in Beijing.
Huawei, a Chinese company which manufactures Smartphones and other technology equipment was banned from playing a part in 5G network in countries such as the US, UK, Canada and many others amidst concerns over the company’s association with the Communist Party of China which would have helped the Chinese government exploit Huawei to gain access to Western telecom networks, either to eavesdrop or to commit other nefarious acts.
Now, the Indian action might have a contagion effect on other countries which may have been thinking about banning or restricting Chinese internet platforms, which may tarnish Chinese dreams of becoming a technological superpower.
Need for data protection laws in India
India needs to prepare on all fronts against a country that is far ahead in terms of cyber warfare capabilities. India lacks an adequate data protection law as the existing laws neither protect the data of the people nor lays down rules and regulations which need to be followed by any app be it an Indian, American or a Chinese for ensuring that they do not meddle with the data. Banning the apps is a temporary solution which can only be ameliorated by a substantive data protection law.
Many countries, be it the US, the EU, Australia or China have enacted multiple laws covering data protection. The United States of America from time to time has enacted various laws governing data protection such as US Privacy Act 1974, HIPAA 1976, COPPA 2000, GLBA 1999. Moreover, many federal states in the US have enacted their laws with California leading the list with 25 Laws. These laws have not only ensured transparency between the consumer and the producer but also the protection of sensitive information. EU passed General Data Protection Regulation (2016) which provides a comprehensive set of rules and regulation regarding privacy and data protection. With a maximum fine of up to €20 million for companies and other organizations, or 4% of the prior year’s turnover for a company, whichever is higher, the act imposes some of the highest penalties for violating such protections.
India took a cue from the European Union’s General Data Protection Regulation Act and drafted the Data Protection Bill 2019 which is pending in the LokSabha. The bill is very comprehensive and will achieve the purpose but the delay in its implementation is proving to be fatal both for the country and its citizens. The passing of this bill in the parliament will ensure that the people are well versed with the rules as to how their data is being processed, stored and used.
India’s move to ban the apps sends a strong signal to Beijing as tensions rise to the tipping point at the LAC. Although citing privacy and security reasons, the move is being deemed as a strategic one to mount pressure on China so that it changes its stance. However, the Chinese App makers can appeal before the committee as provided under Section 69A of the IT Act, 2000 to review the ban, but it is highly unlikely that it would result in an overturn.
This move will bring serious implications for both countries. While it jeopardizes Chinese ambitions of being a technological superpower and of a possible digital silk route, on the other hand, India faces the possibility of job losses linked to the banned apps further driving up the unemployment charts.
Although the move is expedient, the government hasn’t explained how these apps threaten the sovereignty of India as section 69A comprises of terms such as “defence of India, the security of the state, integrity and sovereignty of India and public order”, which means strict confidentiality is maintained regarding the complaints and actions taken. Moreover, the law does not attract Right to Information (RTI) queries as well.
Also, there are concerns over how the ban would be enforced as apps can be downloaded from the web as well, so banning the apps through play store becomes ineffective. Moreover, people can continue to use outdated versions of banned apps. The solution to this problem is that the government may tell ISPs to block hostnames and domain names, but it may lead to over-blocking of Apps and could affect other Apps.
The Law Minister has called the move “a digital strike”. It remains to be seen if the strike affects a change in the stance of China or it is mere political rhetoric.
ABOUT THE AUTHOR(S)
Manish Kumar is a 2nd-year law student at National University of Study and Research in Law, Ranchi.
Zevesh Modi is a 2nd-year law student at National University of Study and Research in Law, Ranchi.
In Content Picture Credit: Mosio
Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.