While making public its decision to block 59 mobile apps, mostly Chinese, including Tik Tok, Cam Scanner, Xender etc, the Ministry of Electronics & Information Technology has mainly referred to its powers under Section 69A of the Information Technology Act, 2000, read with the relevant provisions of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009, to block these apps, citing threat to sovereignty and integrity of India, defence of India, security of state and public order.
The Ministry has taken this decision in view of information available that these applications are engaged in activities which is prejudicial to sovereignty and integrity of India, defence of India, security of state and public order. It has also taken into account the recommendation made by the Indian Cyber Crime Coordination Centre, Ministry of Home Affairs for ‘blocking these malicious apps’. It further states that the Computer Emergency Response Team (CERT-IN) has also received many representations from citizens regarding security of data and breach of privacy impacting upon public order issues. Finally, it justifies its decision by stating that ‘there has been a strong chorus in the public space to take strict action against Apps that harm India’s sovereignty as well as the privacy of our citizens.’
It is pertinent to note that the Government has only stated through PIB that it has decided to block these applications. Any order made in this regard, if any, is not yet made public. However, the Tik Tok management has already confirmed that the Government of India has issued an “interim order” for the blocking of 59 apps. They stated that they are in the process of complying with it and that they have been invited to meet with concerned government stakeholders for an opportunity to respond and submit clarifications.
Meanwhile, the Centre’s Department of Telecom (DoT) has reportedly issued a direction to all telecom and internet service providers to immediately block access to all 59 mobile apps banned by the government. Service providers have been asked to immediately comply with the orders and submit compliance reports to the DoT, the reports said quoting sources from Telecom Department.
This piece intends to examine the provisions of Information Technology Act and Rules framed under it, which has been invoked by the Government to decide to block 59 mobile applications.
Section 69A of Information Technology Act
The Section 69A, introduced vide an Amendment Act of 2009 with effect from 27.10.2009, deals with the power to issue directions for blocking for public access of any information through any computer resource. The provision 69A (1) reads as follows:
Where the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.
The intermediary who fails to comply with the direction issued under the above sub section shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine. Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 regulates the procedure in this regard.
SC Upheld Validity Of Section 69A and Rules In Shreya Singhal Judgment
Apparently, the challenge against this Section 69A was also considered by the Supreme Court in its landmark decision in Shreya Singhal vs. Union of India case. The judgment, delivered by bench comprising Justice J. Chelameswar and Justice R.F. Nariman, had struck down Section 66A of the Information Technology Act, in its entirety, for being violative of Fundamental Rights under Article 19(1)(a) and not saved under Article 19(2).
The main grounds of challenge against Section 69A were (1) There is no pre-decisional hearing afforded by the Rules particularly to the “originator” of information, which is defined under Section 2(za) of the Act to mean a person who sends, generates, stores or transmits any electronic message; or causes any electronic message to be sent, generated, stored or transmitted to any other person. (2) Procedural safeguards such as which are provided under Section 95 and 96 of the Code of Criminal Procedure are not available here. (3) The confidentiality provision affects the fundamental rights.
While dealing with these contention, the Court observed that that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. It observed thus:
First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.
Referring to the Rules, the Court further observed:
The Rules further provide for a hearing before the Committee set up – which Committee then looks into whether or not it is necessary to block such information. It is only when the Committee finds that there is such a necessity that a blocking order is made. It is also clear from an examination of Rule 8 that it is not merely the intermediary who may be heard. If the “person” i.e. the originator is identified he is also to be heard before a blocking order is passed. Above all, it is only after these procedural safeguards are met that blocking orders are made and in case there is a certified copy of a court order, only then can such blocking order also be made. It is only an intermediary who finally fails to comply with the directions issued who is punishable under sub-section (3) of Section 69A.
The Court also held that merely because certain additional safeguards such as those found in Section 95 and 96 CrPC are not available, it does not make the Rules constitutionally infirm. Thus the validity of the Section 69A and the Rules made thereunder was upheld by the Supreme Court.
Interim Blocking Order
The Supreme Court had upheld the validity of the Section 69A and Rules taking note of the fact that there are sufficient safeguards which are to be met before blocking orders are made. In the present case, the Government seems to have issued an ‘interim order’ blocking the applications even before affording an opportunity of hearing to them. But, is the Government empowered to do so when the Supreme Court has already held that procedural safeguards including affording of opportunity of hearing are to be met before blocking orders are made?
This takes us to Rule 9 of the IT (Procedure and Safeguards for Blocking of Access of Information by Public) Rules which deals with blocking of information in cases of emergency.
Notwithstanding anything contained in rules 7 and 8, the Designated Officer, in any case of emergency nature, for which no delay is acceptable, shall examine the request and printed sample information and consider whether the request is within the scope of sub-section (1) of section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit the request with specific recommendations in writing to Secretary, Department of Information Technology.
In a case of emergency nature, the Secretary, Department of Information Technology may, if he is satisfied that it is necessary or expedient and justifiable for blocking for public access of any information or part thereof through any computer resource and after recording reasons in writing, as an interim measure issue such directions as he may consider necessary to such identified or identifiable persons or intermediary in control of such computer resource hosting such information or part thereof without giving him an opportunity of hearing.
The Designated Officer, at the earliest but not later than 48 hours of issue of direction under sub-rule (2), shall bring the request before the committee referred to in rule 7 for its consideration and recommendation.
On receipt of recommendations of committee, Secretary, Department of Information Technology, shall pass the final order as regard to approval of such request and in case the request for blocking is not approved by the Secretary, Department of Information Technology in his final order, the interim direction issued under sub-rule (2) shall be revoked and the person or intermediary in control of such information shall be accordingly directed to unblock the information for public access.
So the Rule mandates the Designated Officer, to bring the request of blocking before for its consideration and recommendation. This has to be done at the earliest but not later than 48 hours of issue of interim direction. The committee consists of the Designated Officer as its chairperson and representatives, not below the rank of Joint Secretary in Ministries of Law and Justice, Home Affairs, Information and Broadcasting and the Indian Computer Emergency Response Team.
The Way Ahead For Blocked Apps
Rule 7 deals with the procedure that is to be followed by the Committee while considering blocking requests. But the same does not provide any time limit for ‘consideration’ by the committee in case the emergency powers are invoked. So once the application is blocked invoking emergency powers, it may have to wait for the consideration and recommendation by the Committee. The procedure is as follows:
(1) On receipt of request under rule 6, the Designated Officer shall make all reasonable efforts to identify the person or intermediary who has hosted the information or part thereof as well as the computer resource on which such information or part thereof is being hosted and where he is able to identify such person or intermediary and the computer resource hosting the information or part thereof which have been requested to be blocked for public access, he shall issue a notice by way of letters or fax pr e-mail signed with electronic signatures to such person or intermediary in control of such computer resource to appear and submit their reply and clarifications if any, before the committee referred to in rule 7, at a specified date and time, which shall not be less than forty-eight hours from the time of receipt of such notice by such person or intermediary.
(2) In case of non-appearance of such person or intermediary, who has been served with the notice under sub-rule (1), before the committee on such specified date and time the committee shall give specific recommendation in writing with respect to the request received from the Nodal Officer, based on the Information available with the committee.
(3) In case, such a person or intermediary, who has been served with the notice under sub-rule (1), is a foreign entity or body corporate as identified by the Designated Officer, notice shall be sent by way of letters or fax pr e-mail signed with electronic signatures to such foreign entity or body corporate and any such foreign entity or body corporate shall respond to such a notice within the time specified therein, failing which the committee shall given specific recommendation in writing with respect to the request received from the Nodal Officer, based on the information available with the committee.
(4) The committee referred to in rule 7 shall examine the request and printed sample information and consider whether the request is covered within the scope of sub-section (1) of section 69A of the Act and that it is justifiable to block such information or part thereof and shall give specific recommendation in writing with respect to the request received from the Nodal Officer.
(5) The Designated Officer shall submit the recommendation of the committee, in respect of the request for blocking of information alongwith the details sent by the Nodal Officer to the Secretary in the department of Information Technology under Ministry of Communication and Information Technology, Government of India (hereinafter referred to as the “Secretary, Department of Information Technology”).
(6) The Designated Officer, on approval of the request by the Secretary, Department of Information Technology, shall direct any agency of the Goverment or the intermediary to block the offending information generated, transmitted, received, stored or hosted in their computer resource for public access within the time limit specified in the direction: Provided that in case the request of the Nodal Officer is not approved by the Secretary, Department of Information Technology, the Designated Officer shall convey the same to such Nodal Officer.
To put it briefly, the applications that are blocked by an interim order, will be given an opportunity to present their version before the Committee. The Committee will consider whether it is justifiable to block them and will give specific recommendation in writing. On receipt of recommendations of committee, Secretary, Department of Information Technology, will pass the final order as regard to approval of such request. In case the request for blocking is not approved by the Secretary, Department of Information Technology in his final order, the ‘interim blocking direction’ will be revoked.