Context: The government’s decision to block 59 Chinese apps has once again spotlighted the vulnerability of Internet freedom at a time of national security.
Is internet freedom being sacrificed?
- Use of Section 69A [of the Information Technology Act]
- It is not a new power that the government is commandeering during a time of national security emergency.
- Section 69A has a limited set of defined grounds under which the government can take action. Those are often wide grounds, including security of the state.
- Responsibility of a democracy:
- India is not only a constitutional democracy, but also one that is a signatory to the International Covenant on Civil and Political Rights as well as the Universal Declaration of Human Rights.
- There is a certain basic understanding that regulation of the Internet or Internet-based services by governments has to respect basic human rights standards.
- Therefore the necessity of blocking the app must be very clearly made out by the government.
- Non following of the standards(Three Part Test)
- For a government to block service or to block any access to content or take other coercive steps that may intrude upon people’s fundamental rights and freedoms, it has to follow what in international law is called the three-part test.
- Less intrusive
- Proportionality test
- Standard of necessity
- Freedom of Speech and expression
- As per the Supreme Court, it is very clear that our fundamental right to free speech and expression applies to online content too.
- There are other concerns relating to security, which is one of the grounds allowed under Indian law, as well as other larger concerns on data and cybersecurity, which the Indian government does not right now have any legal basis to take clear action on because it itself has not enacted law on that subject, they have to make that information available.
- The government should immediately stop asserting that privilege, so that the public indeed knows what is being blocked and for what reason.
- The Supreme Court in the issue of Internet shutdowns in the Anuradha Bhasin judgment said very clearly that any order blocking people’s rights to liberty, especially in relation to the Internet, requires it to be published.
- Review of Section 69A to bring wider reforms.
- Bring clear strategy on cyber security.
- The Information Technology Act (IT Act), 2000 was enacted to give a fillip to electronic transactions, to provide legal recognition for e-commerce and e-transactions, to facilitate e-governance, to prevent computer-based crimes and ensure security practices and procedures.
- It deals with the use of Digital Signature to authenticate an electronic record.
- The act deals with Electronic Governance and provides inter alia amongst others that where any law provides that information or any other matter shall be made available in an electronic form; and accessible so as to be usable for a subsequent reference.
- It deals with establishment of the Cyber Regulations Appellate Tribunal, which shall be an appellate body where appeals against the orders passed by the Adjudicating Officers, shall be preferred.
- Section 69 gives power to issue directions for interception or monitoring or decryption of any information through any computer source.
- Section 67C refers to the Preservation and Retention of Information by Intermediaries. According to the Central Government, any intermediary who intentionally or knowingly contravenes the provisions shall be punished with an imprisonment for a term which may extend to 3 years and shall not be liable to fine.
- Section 69B authorizes to monitor and collect traffic data or information through any computer resource for Cyber security.