IASbhai Daily Editorial Hunt | 2nd July 2020
“If you can’t explain it simply, you don’t understand it well enough.” –Albert Einstein
EDITORIAL HUNT 100 :“Chinese App Ban | UPSC“
Apar Gupta is a lawyer and executive director of the Internet Freedom Foundation
How not to tame the digital dragon
The arbitrary ban on 59 web services undermines legal processes and democratic norms
SYLLABUS COVERED: GS 3: Science and Technology : Internet
Arbitrary Ban on application and websites comes under the purview of Section 66 of IT Act. Discuss -(GS 3)
- Right to be Informed
- Legality of Ban
- POPULAR : 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.
- CENSORSHIP : This singular act of web censorship in India has impacted more people than ever before.
- LEGALITY : Beyond the geopolitical and economic impact of this ban, concerning questions arise as to its legality and the measure’s impact on democratic norms.
- ICCC : The directive was premised on specific recommendations by the Indian Cyber Crime Coordination Committee at the Ministry of Home Affairs.
LACK OF EXAMINATION, DEBATE
- DELIBERATION : The assessment may not have been technically examined or debated on the floor of the house.
- LEGALITY : The legal order by itself has not yet been published or been made publicly available.
- DISCLOSURE : 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.
IMPERATIVE FOR DISCLOSURE
- 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.- [wc_highlight color=”yellow” class=””]CASE: Shreya Singhal (at Para 109) and Anuradha Bhasin [/wc_highlight]
- FLAWS : Proceeding to the more substantive aspects of the action, it seems to contain fairly obvious flaws.
- SECTION 69A OF THE INFORMATION TECHNOLOGY ACT, 2000 : This permits the blocking of information that falls within specific grounds that need to be invoked when it is “necessary and expedient”.
- WEBSITE BLOCKING RULES : The process for this is required to be created under the second sub-clause for which the government made the Website Blocking Rules, 2009.
BANNING A WEBSITE OR APP PROCESS
The first is that the so-called “ban” has been imposed without any form of pre-decisional hearing.
- NOTICE : Such a process would have required a show-cause notice to be served,
- DEFEND : Offering the aggrieved party a detailed opportunity to defend itself.
- RULING : This would have been followed by a detailed legal order.
NO MENTION OF ‘CHINA’
Each application is distinct in its operation; many of them come from different companies and developers.
- PRESS RELEASE : If the basis of the grouping is an economic reprisal against China, the text of the order does not state any such thing.
- PRINCIPLE OF 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.
- DATA PROTECTION : The first is connected with privacy and data protection where the record has been poor.
- CYBERSECURITY : Investments and operational control pose cybersecurity concerns or intersect with sectors of foundational and emerging technologies.
- INSTITUTIONAL CHANNELS : 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.
- ENRICHING DEMOCRATIC VALUES : 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.