The story so far: In the wake of the face-off with Chinese forces on the India-China border in Ladakh, and a violent clash on June 15 that left 20 Indian soldiers dead, the Indian government on June 29 banned 59 apps of Chinese origin , citing data security and national sovereignty concerns. These include popular ones such as TikTok, SHAREIt, UC Browser, CamScanner, Helo, Weibo, WeChat and Club Factory.
Why were the Chinese apps banned?
The Ministry of Electronics and Information Technology in a press release asserted that it had received “many complaints from various sources, including several reports about misuse of some mobile apps available on Android and iOS platforms for stealing and surreptitiously transmitting users’ data in an unauthorised manner to servers which have locations outside India”.
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The Ministry said it had decided to block the 59 apps to safeguard the “sovereignty and integrity of India”, invoking powers under Section 69A of the Information Technology (IT) Act read with the relevant provisions of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009.
The government also said that several citizens had reportedly raised concerns in representations to the Indian Computer Emergency Response Team (CERT-In) regarding security of data and loss of privacy in using these apps. In addition, the Ministry said it had also received “exhaustive recommendations” from the Home Ministry’s Indian Cyber Crime Coordination Centre.
And while the government did not name China openly in its action against the apps, public comments by officials including Ravi Shankar Prasad, the Union Minister for Communications, Electronics and Information Technology and Law and Justice — he asserted that the ‘digital strike’ was done “for safety, security, defence, sovereignty & integrity of India and to protect data & privacy of people of India” — signalled that it was aimed at Chinese economic interests.
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How large is the user base in India for these banned apps?
Estimates by Sensor Tower show the video-sharing social networking app, TikTok, for instance, has seen about 611 million downloads in India over the app’s lifetime, while estimates of active users vary with the highest pegged at 200 million. According to media reports, file-sharing tool SHAREIt has about 400 million users. Statcounter places the Alibaba-owned UC Browser second in India market share at 10.19%, after Google Chrome (78.2%). Other reports estimate its user base at 130 million.
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How will users be affected?
Installed apps may continue to exist on mobile devices. But now that the latest versions of the apps have been removed from Google’s Play Store and Apple’s App Store, users will not be able to access updated versions in future. If a notice goes out to internet service providers asking that data flow from these apps be halted, that could impact the functioning of existing, installed apps.
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What are the alternatives and are they easy to find?
Users of banned browsers or video apps may find it easier to shift to similar offerings from elsewhere. Chingari, a competitor from India to TikTok, saw its downloads soar from 1 lakh to 1 crore-plus on Google Play Store soon after the ban on Chinese apps was announced.
Users of some apps such as CamScanner may not be able to shift so easily. For example, it is not clear yet how say a pdf, or portable document format, created by a user via CamScanner a couple of years ago and backed up in Google Drive, could be transferred to another app such as the Adobe Scan or Microsoft Office Lens, unless individually downloaded and re-uploaded.
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There are some alternative products such as the India-made Zoho Doc Scanner, which does offer users the option to import all files en masse from CamScanner.
How does the ban affect Chinese app providers?
The potential loss of advertising revenue impacts app-makers. Tik Tok’s parent ByteDance Ltd. recorded a doubling of global revenue to $17 billion in 2019, over the previous year, with $3 billion in profit.
Its India business may have yielded only $5.8 million in revenue for the year ended March 2019, but with quicker user adoption more recently, the stakes seem to be getting higher. When TikTok was banned briefly in India last year on the grounds that it reportedly promoted pornography, the company had told a local court that it was losing roughly $15 million a month due to the ban, according to a Reuters report. The app had subsequently been permitted to operate.
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What has China’s response been to the ban?
China has said that it suspects India’s actions could be in violation of the World Trade Organization (WTO) rules. In a statement, the Chinese Embassy in New Delhi said, “India’s measure selectively and discriminatorily aims at certain Chinese apps on ambiguous and far-fetched grounds, runs against fair and transparent procedure requirements, abuses national security exceptions, and [is suspected] of violating the WTO rules. It also goes against the general trend of international trade and e-commerce, and is not conducive to consumer interests and the market competition in India.”
The Chinese government’s comments indicate that it could file a formal complaint at the WTO.
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Will the move hurt India?
It could, in terms of investments and employment. ByteDance Ltd. had talked of upcoming investments worth $1 billion in India. That will probably remain suspended till further clarity emerges, potentially impacting job creation.
What legal options does the Indian government have?
In terms of process, there are two options available to the government under Section 69A of the IT Act to issue ban orders — normal and emergency. In the case of the ban on the 59 apps, based on the use of the phrase “interim order” in the statement issued by TikTok, it appears that the government may have adopted the emergency route. The emergency route allows content to be blocked on the directions of the Secretary, Department of IT, who must consider the impugned content and record his reasons for doing so. In the normal course, an order to block content requires: (a) a decision to be made by a government committee (b) relevant intermediaries to be given an opportunity to be heard by this committee.
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These processes are not required when emergency provisions are used. However, in the case of emergencies, the order of the Secretary, Department of IT, must be placed before the government committee within 48 hours. Based on the recommendations of this committee, the order can then be finalised or vacated.
Does the government necessarily have to publish the order?
The legal order that empowers the designated authority to implement the ban is yet to be made public.
Rule 16 of the Blocking rules requires strict confidentiality to be maintained regarding blocking requests, complaints received, and actions taken. However, policy experts such as Rishab Bailey, a technology researcher with the National Institute of Public Finance and Policy, believe that this provision primarily applies to intermediaries (through whom blocking is implemented). He points out that the government ought to disclose the orders passed (subject to relevant redactions that may be required) in the interests of transparency and accountability.
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Also, and as recognised by the Supreme Court recently in the Anuradha Bhasin case (in the context of Internet suspensions ordered under Section 144 of the The Code Of Criminal Procedure), publishing such orders is the only way in which the reasons and rationale for the decision can be judged. Challenging the decision-making process requires the reasoning to be made public, Mr. Bailey said.
Can the order be challenged in an Indian court?
Though it is unlikely that the companies concerned may take such a step immediately, either they or any affected individual in India could challenge the blocking orders in court.
The courts will then decide whether the government has provided sufficient explanation as to the nexus between what these apps are alleged to be doing and the reasons adduced by the government such as protection of national security and strategic interests. Courts will also consider if the ban is a proportionate and necessary step to be taken, given the facts at hand.
According to Mr. Bailey, another factor to be considered is whether the process for blocking under Section 69A of the IT Act contemplates blocking of content (or apps) on grounds of privacy violations.
