Is the red mist clouding India’s judgement?

On the 29th of June, the Indian government banned 59 apps, majority being of Chinese origin, citing security concerns. Such a move by the government, in light of rising escalations in the Galwan Valley, may also be construed as a strategic move.

Though critics are questioning the veracity of a threat posed by China, both at the border and economically, there is an underlying concern from China that can't be ignored. 

The reliance on China for cheap consumer goods and the manufacturing sector globally is no secret. However, it is not a surprise that the skirmish in the Galwan Valley has seen its first direct repercussions in cyberspace. 

Legally untenable 

The manner in which the ban was implemented has raised a few eyebrows. 

The Ministry of Electronics and Information Technology (MeitY) invoked powers under Section 69 of the Information Technology Act, 2000, to ban the select 59 apps from the Indian market. As per this provision, the central government is empowered to restrict public access of information on a computer source. 

However, this is the first time that this provision has been interpreted to apply to an aggregated set of applications and its legal veracity is under question. 

As per the nature of the ban, the government intends to prevent access to the internet for these apps within India’s territorial limits and to ban the downloads of these apps on Apple Store, and Google Play Store. Upon further examination of the list of the apps that were released by the order, it is difficult to ascertain the basis for the ban. Considering that these apps provide different services and the nature of personal data that they collect also varies, banning them via a singular order is legally insufficient. 

Further, there is more uncertainty concerning the legality of the action owing to how the announcement was restricted to merely a press release by MeitY. 

Legally, in order to exercise powers under this provision of the Information Technology Act, 2000, a legal order is required. Such an order, however, has not yet been released by the government citing confidentiality under allied rules.

This inconsistent application of law does not bode well for the future and sets a bad precedent for the government to indiscriminately ban applications or technology in the future. Though national security remains primary and crucial, there needs to be consistent application of the law to ensure uniformity in government actions. 

Moreover, India must ensure that this ban and its nature of implementation does not contravene any of its international trade obligations and invite sanctions. 

Atmanirbhar India in the tech space

The intention of this move was to tackle India’s reliance on China in the technology sector but; it is at best a piece of reactive policy making. 

To truly tackle the mounting pressure from China, and reduce their influence on the Indian markets, a longer term strategy is best suited. It is imperative that India also acknowledge and recognise the threat from China in other facets of technology, especially hardware. 

This can be seen at the very bedrock of the development of the 5G system. Chinese companies such as Huawei and ZTE into the development of 5G are legitimate national security concerns. 

The use and deployment of Chinese technology at the very bedrock of the 5G system is a matter of concern and must be evaluated. The 5G network is critical as it will be used to upgrade systems across sectors.

The Chinese Cybersecurity Law, 2016, and the National Intelligence Law, 2017, have forced countries across the globe to re-evaluate their involvement with Chinese hardware manufacturers. Four members of the Five Eyes international Intelligence Alliance — Australia, Canada, New Zealand and the US — have declared the use of Huawei telecommunications equipment, particularly in 5G networks, citing "significant security risks".

Greater collaboration and the need for stronger data security frameworks in India

India must work closer with allies such as the US and EU, democracies based on shared objectives and shared ideals, on greater collaboration on technology through bilateral data sharing agreements, and closer integration on understanding the geopolitics of technology. 

The app ban has been justified on the grounds of national security. This would mandate the government to show how these apps specifically pose a threat to the national security and integrity of the nation.

If we were to assume that these apps have insufficient safeguards to protect privacy of citizens, instead of resorting to knee-jerk reactions, there is a need to arrive at long term solutions for these issues. We need to truly question if this response is befitting and enact a data protection law as a necessary first step to protect informational privacy.

It must now look towards enhancing its cyber-security and data protection infrastructure to protect informational privacy of the citizens, while providing better incentives to Indian entities to present themselves as alternatives.

Kazim Rizvi and Shefali Mehta

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Kazim Rizvi is founder of The Dialogue. Shefali Mehta is strategic engagement and research coordinator at The Dialogue. The views in this article are their own.