By: Gangesh Aggarwal* |
INTRODUCTION
While the propelling innovation has borne fruits for the path of development in the Indian economy, it carries alongside certain issues as well. One of the main challenges in the contemporary world is the protection of data of the individuals What is being watched these days is that whoever has more data is the superior one. Google and Facebook offer free types of services however they are data-rich; Google is the king of the king since it has the greatest volume of data, and is the most resourceful company.
As per the official statement, the ban on the Chinese apps was in light of the applications clandestinely gathering and transmitting clients’ data to servers situated outside India. The Ministry of Information Technology, additionally asserts in the public statement that the applications compromised the protection of its residents and represent a cybersecurity hazard since components threatening to the national security of India are mining and profiling this data.
Despite the fact that the government has put this ban from the point of view of data security and privacy, the ban appears to frame a piece of the retaliatory technique against Chinese incursions in Ladakh. Given that India's digital economy is one of the fastest-growing markets in the world, such a decision will unquestionably affect the valuations of Chinese corporations. Be that as it may, such a move is probably going to affect the India-China border dispute. Now there will be no longer reliance on passive diplomacy because the ban on these applications, which comes in the midst of tensions between India and China, is the reasonable message from India that it will never again be a survivor of China's Nibble and Negotiate strategy and that India will put in review the standards of engagement.
IMPORTANCE OF RIGHT TO PRIVACY IN CONTEMPORARY TIMES
The right to privacy is a fundamental right guaranteed by Article 21 under the Constitution of India and it is a fundamental human right as well under Article 17 of the International Covenant on Civil and Political Rights (ICCPR), Article 12 of the Universal Declaration of Human Rights (UDHR). In the era of internet, to protect these rights, the United Nation increased the scope of the Article 12 of UDHR which mandates the state to “respect and protect the right to privacy, including in the context of digital communication by reviewing their procedures, practices and legislation regarding the surveillance of communication, their interception and the collection of personal data, including mass surveillance, interception and collection”, via UNGA (United Nations General Assembly) resolution 68/167. In Justice K.S. Puttaswamy (Retd.) v. Union of India, the Supreme Court of India also held that the right to privacy is an inseparable part of the right to life and personal liberty.
There are many implications when data privacy is breached. At the point when information that ought to be kept hidden gets in inappropriate hands, terrible things can occur. A data breach at a government agency can, for instance, put highly confidential data in the possession of an enemy state. A breach at a corporation can place exclusive information in the possession of a competitor. A breach at a school could place students' PII (Personally identifiable information) in the possession of crooks who could commit identity theft. A breach at a hospital or at the clinic of a doctor can put PHI (Protected Health Information) in the possession of the individuals who may abuse it.
WHAT ARE THE SECURITY CONCERNS?
At present, there is inadequate data on exactly how utilizing Chinese applications in India raises national security worries to a degree justifying a total boycott of the applications. In any case, research recommends that Chinese laws require application administrations to essentially share user data upon demand. Further, an ongoing report demonstrated that most Chinese applications (like Helo and Shareit) gather relatively excessive data, for example, access to microphones, cameras, and exact cell-site location data which isn't important to render a particular service.
The legislature must be complimented for the audit of FDI (Foreign Direct Investments) standards — Press Note. 3 (2020 series) — to investigate investments by entities from states neighboring India, as some of these investments are strategic in nature. However, there are some security concerns which are still in place occurring from activities of corporations of bordering countries like China.
Let's divide these concerns into two distinct areas to see the strategic nature of these apps and investments- firstly, the applications like UC Browser and TikTok; and, secondly, the investments which Chinese organizations are making in entertainment-based applications in India.
● UC Browser: Certain studies and researches have shown that UC Browser can control what a user wants to see — for example, the Chinese side is being shown on the history of the India-China War when searched for this information. It is not merely a browser and a tool-based product, but has shifted to be a content-based player in India.
TikTok: On account of TikTok and other applications, the research uncovered certain aspects of Chinese apps such as the camera, microphone, and full network access were configured in such a manner that any information use or espionage work couldn't be checked by the Indian specialists. Recently, a leading mainline publication conveyed a story that Voyager Infosec, a digital lab, discovered 30,000 clips focused against a particular community which could have prompted bigoted savagery. With the application being youth-driven, questions remain the same that if the information of Indian clients are being given over to Chinese specialists as substance balance, privacy, and security controls of such applications are situated in China. Only as of late, in the US, Republican Senators Josh Hawley and Rick Scott presented a Bill in the Senate to ban TikTok for all clients holding government gadgets.
●In entertainment-based applications, the substance is curated and the proprietors/advertisers of the application can decide editorial changes or creatives. In India, the current 400 million cell phone clients are educated and informed and can differentiate between propaganda and facts. It's the future 450 million prospective clients who are going to use the said app which is the cause of concern.
There is each likelihood that these applications from neighbouring countries will be utilized to instigate collective disharmony and common defiance, and given the instruction and introduction levels of the upcoming age of cell phone clients, there remains a grave security hazard particularly as cell phone entrance and speed of data improve in delicate border regions.
The adage in the tale of the Trojan Horse, "Beware of Greeks bearing gifts", is in this manner much increasingly significant today as far as national interest and security is concerned.
LEGAL ANALYSIS OF THE DECISION TO BAN
According to Section 69-A of the Information technology Act, 2000, the central government has the power to issue directions to block for public access, of any information, through any computer resource where the central government or any of its officers specially authorized 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, or
Defence of India, or
Security of the state, or
Friendly relations with foreign states, or
Public order, or
For preventing incitement to the commission of any cognizable offence relating to above.
Recently, according to Forbes, Apple provided certain evidence of TikTok secretly spying on millions of iPhone users. Security researchers Talal Haj Bakry and Tommy Mysk caught TikTok spying and said, “TikTok is abusing the clipboard, which stores user information, in a quite extraordinary way.” Security and privacy mechanisms devised by Apple welcome android (iOS) 14 have caught TikTok red-handed "snooping on users".
After the imposition of ban by the Indian government, the head of TikTok India released a statement which said, “TikTok continues to comply with all data privacy and security requirements under Indian law and has not shared any information of our users in India with any foreign government, including the Chinese Government. Further, if we are requested to in the future we would not do so.” It may seem plausible here that the TikTok is willing to comply with the privacy and security regulations but the devil lies in the details because even if TikTok wants to deny giving data to the Chinese government, it will have to comply with the request of the Chinese government if asked by it for giving the data. The Chinese government has devised such laws that give them the supreme authority over any of the Chinese companies. Under Article 14 and 16 of Chinese intelligence law, Chinese private companies cannot deny any sort of information asked by the government if asked to.
Article 14, in turn, grants intelligence agencies authority to insist on this support: “state intelligence work organs, when legally carrying forth intelligence work, may demand that concerned organs, organizations, or citizens provide needed support, assistance, and cooperation.” This says that if the Chinese government requests any information from any Chinese company they will have to comply with it.
According to Article 16, intelligence officials “may enter relevant restricted areas and venues; may learn from and question relevant institutions, organizations, and individuals; and may read or collect relevant files, materials, or items.” Furthermore, apparently associations and people don't have a decision with regards to helping the administration. The 2014 Counter-Espionage law says that “when the state security organ investigates and understands the situation of espionage and collects relevant evidence, the relevant organizations and individuals shall provide it truthfully and may not refuse.”
Following the Chinese laws, countries like Australia and USA banned 5G technology of Huawei, a Chinese company, and Donald Trump’s envoy to EU even said that Chinese laws are designed in such a manner that they have the authority to invade the privacy of any private company For example, if any individual is driving a car owned by a private company and the car is connected to a 5G network, and if the Chinese government requests that the person sitting in the car needs to be killed then that Chinese private company will have to comply with that request of the government. Such examples were used in America to indicate how dangerous would it be to allow Chinese private companies to operate in other countries.
INTERNATIONAL PERSPECTIVE
China claimed the decision of banning Chinese apps as "selective and discriminatory" and as an infringement upon WTO rules of fair trade practices. In any case, regardless of whether China moves toward the WTO it is probably not going to get relief in this issue. Here are the main reasons why WTO is probably going to support India's decision:
● There is no bilateral agreement between India and China in relation to the smartphone applications- Chinese organizations propelled their applications in India, not on the grounds that the two nations consented to an agreement but since India is a free market with granting access to all. Therefore, India can't be blamed in the WTO for violating any mutually agreed law.
● The rules of WTO favour India’s decision- Going by the WTO laws, a nation is permitted to act against products or companies for being a danger to its sovereignty and national security interest. This is actually what the government has said while invoking the provisions of the IT Act against these applications.
CONCLUSION
Clearly the acts of the Chinese government violate many provisions and are posing a threat to the security of India by breaching the privacy of millions of users. As a result of the ban, removing Chinese-backed apps would mean a heavy blow to the Indian start-up ecosystem, analysts warned because there were major Chinese investments in 18 of the 31 unicorn startups in India. Chinese Foreign Ministry spokesperson Zhao said that if the Indian government does not have sufficient capital to support the development of domestic tech start-ups and talent, it would be impossible to oust Chinese companies from the market. However, what is of utmost importance is the privacy of the data. In the course of a couple of years, India has risen as the main trailblazer with regards to technological advancements and an essential market in the digital space and the danger of encroachment of privacy can destroy the turns of events.
India's application ban, and thought of related limitations on telecom equipment and mobile handsets, depends on the acknowledgement that information streams and digital technology are a new currency of global power. Therefore, there is an urgent need for a data protection law in light of the fact that security and data privacy stay to be significant difficulties exuding from the progressing digital revolution. In this manner, a data protection law is long overdue. In this specific circumstance, the Indian parliament must swiftly enact the Personal Data Protection Bill, 2019.
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* The author is a student at Gujarat National Law University, Gandhinagar and has a keen interest in constitutional law.
Image Source: https://inc42.com/features/as-chinese-apps-get-banned-these-indian-alternatives-rise-to-fill-the-gap/