(with inputs from Torsha Sarkar and Sarvjeet Singh) 

The Indian government blocked access to 59 Chinese apps by exercising Section 69A of the Information Technology Act. MediaNama spoke to Torsha Sarkar, policy officer at the Centre for Internet and Society, and Sarvjeet Singh, director at the Centre for Communication Governance at National Law University, Delhi, to understand how a Section 69A blocking order comes into existence.

Under this Section, the government has the right to block public access to any information generated, transmitted, received, stored or hosted in any computer resource “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”. These are the same as the ones under Article 19(2) with the exception of “decency or morality or in relation to contempt of court, defamation or incitement to an offence”.

Section 69A of the Information Technology Act, 2000

Power to issue directions for blocking for public access of any information through any computer resource.
(1) Where the Central Government or any of its officer 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.

(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed.

(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.

Under IT (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, issued under Section 69A (2), this is what happens:

Key players:

  1. Organisation: government ministries and departments, both at central and state level, and all agencies of the central government as notified in the Gazette.
  2. Designated Officer: Notified by the central government, at least at the rank of joint secretary who is the chairperson of the Section 69A committee (described in point 4). The central government notified the Group Coordinator, Cyber Law Division in the Department of Information and Technology, as the designated officer in January 2010, Pavit Singh Katoch, partner at Shardul Amarchand Mangaldas, said.
  3. Nodal Officer: Person at every organisation who handles processes related to Section 69A. The organisation will communicate the name of this person to the Department of Information Technology under MEITY and publish their name of the organisation’s website.
  4. Committee for examination of request (referred to as “committee” in this article): It consists of the designated officer as its chairperson and representatives (not below the rank of joint secretary) from:
    1. Ministry of Law and Justice
    2. Ministry of Home Affairs
    3. Ministry of Information and Broadcasting
    4. Computer Emergency Response Team (CERT-In): The Director General of CERT-In is part of the committee. Dr Sanjay Bahl is the current DG.
  5. Review Committee: Constituted under Rule 419A of the Indian Telegraph Rules, 1951 (for surveillance) comprising:
    1. Cabinet Secretary (chairperson)
    2. Secretary, Department of Legal Affairs (member)
    3. Secretary, Department of Telecommunications (member)

How does the process work under normal circumstances?

  1. Person makes a complaint to the designated officer in one of the two ways:
    • Via nodal officer: In this case, the person sends their complaint to the nodal officer of the government organisation who, after being satisfied with the nature of the complaint, sends it to the designated officer in the prescribed format (appended in the Rules).
      • What counts as a complaint under Section 69A (1)? Any content that may be against “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”.
    • After taking permission from Chief Secretary of the state/UT: A person complains to the designated officer with permission from Chief Secretary of the state or UT. If the UT has no Chief Secretary, the Adviser to the Administrator of the UT may permit such a request.
  • Designated officer does not entertain any direct complaints for blocking of information.
  1. Acknowledgement within 24 hours: Designated officer acknowledges the complaint within 24 hours of receipt. DO sends it to the committee.
  2. Committee examines the request/complaint along with printed sample content; intermediary is notified to give its response: After that, the designated officer identifies the person or intermediary hosting the information and asks them to submit their response in person to the committee through, what is called, a Section 69A notice. The date and time that the designated officer gives to intermediary to present themselves in person has to be at least 48 hours after the intermediary receives the notice, that is, there should be at least 48 hours between the notice and the deposition by the intermediary. It is understood that until the final order is passed by the IT Secretary, the content is not blocked.
    • If the intermediary is a foreign entity, it has to submit a response within time specified by the designated officer.
    • While responding to the Section 69A notice, either in person or in writing (only for foreign entities), the intermediaries can make a case for why the cited content is or is not violative under Section 69A.
    • If the intermediary does not appear, or does not respond, the committee will submit its recommendations to the designated officer on the basis of available information.
  3. Committee makes recommendations to the IT Secretary via the designated officer: Committee will evaluate whether the complaint/request falls within the ambit of Section 69A(1) (as given above) and give its recommendations to the IT Secretary via the designated officer.
  4. IT Secretary decides: On the basis of the recommendations of the committee, two situations are possible:
    • Request to block access is approved: Designated officer will inform the agency of the government of the intermediary to block public access to “the offending information generated, transmitted, received, stored, or hosted” by them. In the case of telecom service providers, it is understood that the Section 69A blocking order is always routed to the TSP through the Department of Telecommunications (DoT) as per their licensing conditions.
    • Request to block access is denied: Designated officer will convey the denial to the nodal officer.

Steps 2-5 must be carried out within 7 days of receipt of the request by the designated officer.

How does the process work under emergencies?

  1. IT Secretary may pass interim blocking order at the recommendation of the designated officer: Designated officer, in situations of emergency, will examine the request and the printed sample material, decide whether it is in the scope of Section 69A (1) and give recommendations to the IT Secretary, who may then pass an interim measure.
  2. Committee must be convened and recommendations sought from it within 48 hours of the passage of the interim order; no limit on by when the final order needs to be passed: The designated officer will convene the committee within 48 hours of the passage of the interim order to seek their recommendations. On the basis of the recommendations, the IT Secretary will then either pass a final order revoking the interim measure and unblock access, or finalise the blocking order. The Rules do not specify the maximum time that the IT Secretary can take to pass the final order that may either finalise the blocking or revoke it.
    • In the absence of a final order, it is understood that the content/site/app remains clocked.
    • It is not clear if and how intermediaries can appeal passage of blocking orders under emergencies.

What if there is a court order?

The designated officer will immediately submit the court order to the IT Secretary and initiate court-directed action. No committee will be convened for this.

Role of the Review Committee

Apart from the main committee that would need to act within 7 days under normal circumstances and within 48 hours under emergency situations, there is also a Review Committee which meets at least once every two months to review previous orders under Section 69A.

  • Can revoke Section 69A blocking orders: If it thinks that directions are not in accordance with Section 69A, it may issue orders that revoke previous orders issued by the IT Secretary. Thus, the decision of the Review Committee supersedes the decision of the IT Secretary.

Confidentiality

The Rules make it mandatory to maintain “strict confidentiality” regarding all requests and complaints received, and actions taken thereof. This is why it is significant that the government decided to make it public that it has banned 59 Chinese apps under Section 69A. Singh, however, pointed out that it technically may not be in violation of the confidentiality rules since the order itself has not been made public.

Decision to ban 59 Chinese apps probably under Emergency Provision

Both Sarkar and Singh agreed that the decision to ban the 59 apps was probably taken under the emergency provision. Singh pointed out that since TikTok has been invited to meet the “concerned government stakeholders”, it is likely that the committee is currently in the 48-hour emergency period.

Checks and balances?

Singh pointed out that the problem here is that it is a couple of executive bodies overseeing each other’s works, but at least there is a separate Review Committee. It is also not clear if intermediaries can appeal against a blocking order passed by the IT Secretary. Sarkar said that the intermediaries, in the past, have protested against legally flawed Section 69A orders, such as, Facebook did in Calcutta High Court, Singh said.

As per the Shreya Singhal judgement, the government is ideally supposed to contact the originators of the content, and if unable to do so, reach out to the intermediaries, Singh said. Both Sarkar and Singh agreed that the distinction between originator and intermediary is complicated in this case because entire apps have been banned rather than specific content.

Watch MediaNama’s discussion on the Indian government’s decision to ban 59 Chinese apps:

***Update (July 3, 2020 9:57 pm): The emergency provision has been updated as well as who is part of the committee from CERT-In.

***Correction (July 2 7:57 pm): The article erroneously said that the intermediary has to appear before the committee within 48 hours of receiving the Section 69A notice from the designated officer. That is incorrect. This is the correct statement: “The date and time that the designated officer gives to intermediary to present themselves in person has to be at least 48 hours after the intermediary receives the notice.” The error is regretted. (Hat tip: Aman Taneja)

***Update (July 2, 2020 12:49 pm): Updated with more details. Originally published on June 30, 2020 at 5:52 pm.