Co-authored with Sarasvati T
“… [if] an app needs to be kind of selectively banned in a particular area, the telecom provider has to have [always an] access to the device so that they can track it and switch it off. So I, as a user, have to give that access. And if someone is kind of getting into my system and accessing it without my consent, that is a privacy concern. Second is that many times if, for example, a particular app or anything has to be blocked in a particular place, you would need to know the servers from which it is coming and sharing the IPs of servers, etc. [It] is a concern because normally they are masked because of various kinds of security attacks, etc. which can happen. So… selective banning is technically difficult to happen. And I think the technologists need to be there in the discussion where when we talk about a lot of things. It’s not so easy because, for example, they may want an app ban in Jaipur, but I may be travelling from Delhi, will my activity also be banned? In that case, the telcos have to have access to my phone always to know where I am, what I am using, and that is scary,” said Amrita Choudhury, Director of CCAOI, at a discussion around the banning of apps during MediaNama’s “App Bans and Network Fees” event.
The session on app bans with moderator and independent journalist Aditi Agrawal, speakers Jhalak Kakkar (Centre for Communications Governance), Maknoon Wani (Council for Strategic and Defense Research), and lawyer Samar Bansal focused on the Telecom Regulatory Authority of India’s (TRAI) plans to regulate online communication platforms and impose bans on certain applications.
MediaNama hosted this discussion with support from Google and Meta. CCAOI, the Centre for Communications Governance at the National Law University (Delhi), the Centre for Internet and Society, and The Internet Freedom Foundation were our partners for this event.
How will selective banning work? A 2021 report of the Parliamentary Standing Committee on Information Technology had indicated that the government must adopt alternatives to internet shutdowns and selective banning is being seen as a mitigative measure against the disruption of critical services like health, education, and finance during a complete internet ban. Panelist Wani, however, noted that all the major apps like WhatsApp, Facebook, and Telegram, are “fundamentally integrated” with all these services.
Highlighting the multi-use and infrastructural nature of major apps like WhatsApp which are used for communication as well as business transactions, Agrawal raised a question about the government’s approach towards selective banning of online apps.
“For instance, if I were to ban WhatsApp today, not in India, let’s say a sparsely populated area, it would still have an impact, a worse impact than say banning a Telegram because WhatsApp has almost become infrastructural where it is used for payment services by MSMEs, it is used for basic communication, it is used for news. So is there perhaps a hierarchy of apps and is it worse to ban one app over another?,” Agrawal asked.
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Wani explained, “Let’s take the example of WhatsApp. WhatsApp is used by doctors to consult with specialists. It’s used by students in their classroom groups. Then let’s talk about Telegram. If there are any UPSC aspirants here, you’ll know that all of the content for UPSC aspirants comes on Telegram. Facebook is used to advertise. It’s used to generate leads. My family has a small business. We use WhatsApp, we use Facebook to send samples, photos of samples. So, if you talk about objectives, these apps constitute let’s say more than half of the total internet value chain. If you ban these apps, you’re effectively banning a significant portion of the internet. I don’t know how these objectives will be met, [and] how this alternative is better than the internet shutdown itself.”
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Huge investment required for district-level app-blocking: Participant Deepak Maheshwari said that while blocking of select apps at the district level is not impossible, it is an extremely difficult process. He gave the example of the recent unrest in Gurgaon where some parts of Gurgaon, as well Nuh district of Haryana has to enforce the blocking.
“So to do this type of blocking, it’s not that it is impossible, I mean, you can block something, let’s say each and every tower level for that matter, but then that’s going to require a huge level of investment by service providers and also much more management from them in terms of technically doing it. So, one [problem] is having the capability, technical capability and feasibility and the other is [the blocking of one particular tower],” said Maheshwari.
Blocking may be easier at a circle-level: Maheshwari also talked about how blocking of specific apps and websites for a telecom provider is easier at a circle-level rather than a city-level. This is because it will come under their licensing area where the licensees are known entities. This makes it easier to communicate with them.
Deepak gave an example from 20 years ago where the Hyderabad High Court asked for the blocking of a particular website in Andhra Pradesh. It proved to be a challenge for large internet service providers (ISPs) rather than regional ISPs, because they were running on a single DNS.
“If you’re running multiple DNS, if you’re running DNS in every Gram Panchayat, every village, every mohalla then fine, it’s possible to do [the blocking],” he said.
How do you ban protocol for communication? Nikhil Pahwa, Founder of MediaNama, pointed out that anyone can use a Jabber XMPP or similar protocol to communicate with any app. In a federated messaging ecosystem such an arrangement cannot be blocked. He raised the question of whether this then entails a parallel blocking of emails as well.
In response, Maheshwari said that about 20 years ago the Department of Telecommunications wanted ISPs to monitor and report the value of the UDP protocol, due to its particular use by VOIP services. The department planned to carry out additional investigation if the UDP value turned out to be very high for certain customers. According to the speaker, this was a huge burden for ISPs to undertake.
“After a lot of discussion, finally the solution was simple. All that we did was we asked the department that, okay, BSNL and MTNL, these are two ISPs under your direct administrative control. Please implement it there. Once we know how it has been implemented, others will implement it. And to the best of my knowledge, it’s been 18 years since then and it’s yet to happen beyond that,” said the participant.
Understanding device-level banning of apps: Participants discussed banning at a user device level on the basis of information like phone number. Maheshwari pointed out that there are device-level identifiers in banning apps like the roaming setting when a person travels from Delhi to Jaipur. This is done by referring to companies’ Home Location Registry (HLR) and Visitor Location Registry (VLR).
“It’s very simple and that particular operator, let’s say whoever is in Jaipur, if they are blocking it, if you are a user, whether you are a subscriber of theirs in Jaipur or of their services elsewhere, or any of the roaming customer for that matter of any other operator in India or elsewhere, it will remain blocked because they have blocked it at the network level,” he said.
While Maheshwari talked about known identifiers, another participant pointed out how at times people are not aware which identifiers are being used. He gave the example of the recent European ban on Threads even when users were trying to access the app through VPN. This means that there are certain services that identify devices based on other information as well such as source of purchase.
Centralisation of power by big tech companies: Given that a few applications occupy most of the internet traffic online by providing multiple online services, there exists a certain amount of centralisation on the internet. Agrawal pointed out it is fairly possible to govern the internet if the major apps or websites are controlled by a government.
Agrawal asked, “When there’s so much centralization of the internet on the one hand, and on the other hand, you have a government that’s seeking absolute control, what kind of negotiations could happen when you have the option of selective banning of apps? I’ll give you an example. When it comes to banning, say a Threema or a Briar, which is used by very few people in this country, it’s okay. It won’t even make front page headlines. On the other hand, if you were to ban WhatsApp, it will be there everywhere. The news will go viral on WhatsApp, Telegram, Signal, all those things. And then WhatsApp also has certain leverage with the government, but on the other hand the government also has certain leverage over WhatsApp because India is the biggest market for most of these apps. So would they be willing to negotiate with the Indian government and make massive concessions in a way that they perhaps would not do for a UK?”
Bansal replied stating that there are “unverified reports” of such conversations taking place across the world.
“..there is going to be an element of negotiation. There is going to be perhaps not a proportionate action against the larger players as they would be against the smaller players. The first point to see is that possibly if at any point of time, there was a ban, let’s say, of a larger and more well used communication, OTT communication app, in terms of the various proportionality and least intrusive principles as laid down by the court that would be far harder for the court, for the government to justify,” Bansal added.
Will selective bans operate parallel to blocking under Section 69A? When asked whether selective banning of apps will take place through Section 69A of the Information Technology Act, 2000, Kakkar raised a point that Section 69A doesn’t have an unblocking mechanism. She explained, “It only has a mechanism where orders can be rolled back if the review committee or in an emergency provision the committee disagrees with it. We don’t have enough information and transparency around how that mechanism works. If they really want to set up a system like this, they probably have to bring something in through the telecom bill or the DIA [Digital India Act] to really operationalize this in a very clear manner.”
Banning orders must have specificity: To make sense of this ambiguity around banning of apps, Bansal suggested proper reasoning in the banning orders issued by the government. He gave an instance where policy-makers take the decision to ban a particular app in a particular area for a particular time. In such a situation the policy maker has a responsibility to ensure that such an order is upheld based on specific factors and going “beyond simple boilerplate language.”
“Every decision of the government has to be on the basis of some material, so that ultimately they say that reasons are the lifeblood of every order. So therefore, someone reading, assessing, and wanting to challenge [the order] must know why it was there,” said Bansal.
He gave the example that doing so allows particular apps that are targeted for banning to ask, “why have you targeted me? Do you have specific data? Is your order clear and non-vague enough to say that my app specifically was being used by certain people to do certain bad things that will also compel the government, which in a democratic society is a good thing to put its cards on the table?”
Regarding the reasoning of national security, he pointed out that the word can be abused by governments as a cover for everything. He gave the example of the ban in Manipur where the orders were boilerplate and every week the same order was reproduced and published again.
“That clearly to my mind shows a non-application of mind. So had they been clearer we would also have visibility as to the justification, the rationale behind it. And that particular messaging service would know why it has been targeted versus others and that may have furnished it a ground of challenge ultimately. That’s the importance of therefore, giving reasons and the need for specificity,” said Bansal.
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