Addressing the nation on the 77th Independence Day, Prime Minister Narendra Modi reiterated the pivotal role of ‘Digital India’ in transforming the country into a developed nation by 2047.

Ubiquitous, affordable, secure, resilient, and uninterrupted internet is crucial for realising this vision. Massive spurt in digital payments over the past few years and the reliance on the digital ecosystem during the pandemic provide ample proof of the centrality of the internet to realising our development goals. With user-friendly applications across artificial intelligence, quantum computing, extended reality, and Web3, this trend would only gain further momentum.

It is important to keep this backdrop in mind, with respect to the issue of selective banning of over-the-top (OTT) apps, as raised by the Telecom Regulatory Authority of India (TRAI) in its July 2023 consultation paper on ‘Regulatory Mechanism for Over-The-Top (OTT) Communication Services, and Selective Banning of OTT Services’.

Selective banning is the concept of blocking certain OTT services in specific regions or geographies during times, such as that of public unrest or public disorder.

Constitutional test

Blocking of any website, URL or app severely restricts the fundamental rights to freedom of speech and to trade, which, as per the observations of the Supreme Court in the Anuradha Bhasin case, are protected over the internet as well. Hence, an order of selective blocking must satisfy the Supreme Court’s triple test of lawfulness, necessity, and proportionality to qualify as a ‘reasonable restriction’ under Article 19 (2) of the Constitution.

As per the ‘proportionality principle’, the State can place a restriction on a fundamental right to achieve a legitimate goal, provided that the restriction is minimal and there are no better alternatives. Selective banning not only impinges on certain fundamental rights, but it also comes at the cost of the fact that it is unclear whether selective banning is truly a ‘minimal’ restriction, with no less-restrictive alternatives.

Notwithstanding the de-merits of selective blocking of OTT apps and the associated costs thereof, let us now examine the technical infeasibility and the unintended consequences that will likely arise from selective banning, whether done by an OTT provider itself or by a telecom service provider (TSP).

The OTT provider would need to track ‘live location’ of all its users to ensure that users belonging to a specific geography are not able to access its services, while the TSP would have to undertake deep packet inspection (DPI). Both approaches give rise to privacy, security, and other allied concerns (as elaborated below), thereby rendering these approaches unpragmatic.

Unintended consequences

Firstly, location tracking by the OTT raises serious privacy and security concerns. Even the recently enacted Digital Personal Data Protection Act, 2023 contains principles to minimise data collection, with such collection typically being subject to the users’ consent and heightened notice requirements.

Secondly, while TSP can, in theory, block an OTT service hosted on a specific IP address, OTT service providers often use dynamic IP addresses to thwart cyber-attacks and may even host multiple apps or OTT services on a single IP. Blocking of any such specific IP address by a TSP may lead to unintended blocking of other kosher apps which are using the same IP address as well.

One ‘solution’ to this issue is conducting DPI, however, the prospect of DPI by TSPs undermines the fundamental rights to freedom of speech and privacy. Since confidential information would also be subject to DPI, it may even compromise national security, an oft-cited reason for blocking in the first place. Moreover, DPI by TSPs would run afoul of TRAI’s own net neutrality norms.

Thirdly, without access to familiar apps, the affected populace may fall prey to disinformation/misinformation or rumours, thereby possibly exacerbating the prevailing or imminent ‘public emergency’, that a selective banning order may be seeking to counter in the first place.

Fourthly, such a ban would severely disrupt commercial operations, particularly for the cash-strapped MSMEs, the backbone of the economy, exports, entrepreneurship, and employment as they often rely on OTT apps for orders, logistics, taxation, and payments.

Even if a particular OTT app is selectively banned in a particular geography, the same begs the question: “Does it disarm the malicious actors?” Not really. Selective banning is not likely to be a successful policy tool to counter malicious actors at times of public unrest.

Firstly, such actors can access the banned apps using proxy servers or ‘virtual private networks’. Secondly, they may resort to using obscure copycat versions of popular apps. Often, these may not have any local presence within India and might be non-compliant with the extant regulations. On the other hand, popular OTT apps not only have a local presence, but are also likely to bear additional compliance burdens as intermediaries or significant social media intermediaries, under the Information Technology Act, 2000 (IT Act).

Minimal intervention

Considering the challenges in the technical feasibility of selective banning in different ways and their severe adverse unintended consequences, a more balanced and nuanced approach favouring minimal interventions may be adopted by the government.

Instead of selectively banning an app or service, the government can always issue blocking orders (including emergency blocking orders) under Section 69A of the IT Act directing OTT services to remove specific pieces of content from their platforms. Entire OTT platforms may also be entirely blocked, if necessary (such as if a platform deliberately fails to comply with the law of land) under this framework. After all, and by way of an analogy, it is better to filter out specific pathogens instead of choking the water supply in a particular area.

The writer is the CEO of Public Affairs Forum of India (PAFI) and is engaged with several esteemed think tanks

Related Topics
comment COMMENT NOW