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A quest for order amid cyber insecurity

1. CONTEXT OF THE NEWS

The present time is both, the best and worst for cyberspace.

Apple, Amazon and Microsoft have amassed over a trillion dollars in market value since the beginning of the year 2020.

However, on the other hand, cyber-attacks have grown as well.

2. INCREASING CYBER-INSECURITY

2.1 Increasing malwares

  • A report puts the number of daily malware and phishing emails related to COVID-19 to over 18 million in a single week in April 2020 monitored by a single email provider.
  • This was in addition to more than 240 million COVID-19-related daily spam messages.        
  • Twitter hackers and ransomware targets too are increasing by the day.

2.2 Cyber-attacks and States

  • Concerns about role of states in cyber-attack are also surfacing as mentioned by Australia.
  • There are also allegations on China regarding hacking health-care institutions in the U.S. doing research on COVID-19 treatment.
  • The United Kingdom has warned Russian state backed hackers targeting pharmaceutical companies working on COVID-19 vaccine.
  • India has recently banned specified Chinese Apps stating that they are “engaged in activities prejudicial to the sovereignty and integrity of India”.
  • This act of the Indian Government adds another layer of complexity to the contestation in cyberspace.
  • Therefore, clearly the cyber insecurity of individuals, organisations and states is expanding amidst the COVID-19 atmosphere.

2.3 Better understanding of Global Cyberspace

  • The world is increasingly moving in the digital space. People are adapting to new ways of digital interaction and an increasing number of critical infrastructure is turning digital.
  • However, despite the accelerated pace towards digital technologies, most of us do not understand the parameters of the transformation towards digital.
  • Much like the global public health, cybersecurity too is considered a niche area and is left to the experts.
  • The covid-19 pandemic has underlined the importance of the global public health infrastructure and the need to abide by agreed rules.
  • On similar lines, a better understanding of the global cyberspace architecture is also imperative.

3. NO GLOBAL COMMONS

3.1 The global commons

  • International law identifies four global commons viz. the High Seas, the Atmosphere, the Antarctica and the Outer Space.
  • The borderless global cyberspace is also considered a part of the “global commons”, however experts are of the view that it does not exist.

3.2 Border control on cyberspace

  • The view of cyberspace in terms of connectivity across national boundaries is an illusion.
  • Since the internet is dependent on the physical infrastructure that is under national control, the internet too is subjected to border control.
  • States control the national networks through laws in accordance with their international commitments.

3.3 Responsibility of States vis-a-vis cyberspace

  • States are also responsible for the following:
    • Ensuring cybersecurity,
    • Enforcing laws related to cyberspace
    • Protection of public good
  • Apart from their own actions, States are also responsible for actions taken from within their sovereign territory.
  • However, the implementation of the States' responsibilities towards cyberspace is difficult, since the infrastructure on which the Internet is dependent, falls within the jurisdictions of multiple states.
  • These states have differing approaches towards the view of cyberspace and cybersecurity.

3.4 Multiple Stakeholders

  • There are multiple stakeholders in the cyberspace including both states and non-state actors.
  • The non-state actors play key roles with both benign and malignant intentions.
  • Furthermore, some networks are private which have different objectives than the states have.
  • At last, the cyber tools too have dual use, cheap and make attribution and verification of actions quite a task.

3.5 Developing cyber norms

  • Despite the presence of both state and non-state actors, only the states have the right of oversight.
  • There is no single authority for the global cyberspace like the World Health Organization, which can monitor, assess, advise and inform about fulfilment of state commitments, in however limited or unsatisfactory a manner.
  • To put it simply we are still searching for the cyber "rules of the road".
  • Presently we are in the developing stage of “cyber norms” that can provide a balance between the competing demands of national sovereignty and transnational connectivity.

4. GAPS IN CURRENT PROCESSES

4.1 UN and Cybersecurity

  • In 1998, Russia raised the issue of information and communications technologies (ICTs) in international security on the UN agenda.
  • Since then, six Group of Governmental Experts (GGE) with two-year terms and limited membership have been working on the issue.
  • In addition to the GGE, last year, an Open-Ended Working Group (OEWG) began working on the same issue with similar mandates. The group is open to all and many states have shown interest in the group.
  • A report is expected by the next year.

4.2 Discussions in the group

  • The discussions are focussed narrowly in line with the mandate.
  • Issues that have been kept out are:
    • Internet governance
    • Development
    • Espionage
    • Digital privacy
  • Issues like terrorism and crime are acknowledged as important but the discussions on these topics are not as thoroughly done as in other UN bodies.

4.3 Outcome of the UN Exercise

  • The net outcome of the UN exercise on cyberspace is the acceptance that international law and the UN Charter applies to cyberspace as well.
  • On these lines, a set of voluntary norms of responsible state behaviour was agreed to in 2015.
  • However, the aspects are circumstances in which the international law will be applicable have still not been addressed and various reports on the matter call for action including the recent report by UN Secretary General AntónioGuterres’s entitled “Roadmap for Digital Cooperation”.
  • However, given the present geopolitical circumstances there is very little hope of such processes being undertaken.

5. MORE ENGAGEMENT NEEDED

5.1 Expanding cyberspace in India

  • Generally speaking, technologies move faster and are ahead of the development of associated norms and institutions, similar is the case with cyberspace.
  • This provides India the opportunity with the time and space to develop our approach in tune with relevance of cyberspace to India's future economic, social and political objectives.
  • Despite the digital divide, India’s cyber footprint is expanding at an accelerated rate and therefore the rate of conflicts and crimes will increase too.
  • Under these circumstances, the Shared “rules of the road” become imperative.

5.2 India and Cybersecurity

  • The Indian Computer Emergency Response Team (CERT-In) under the Ministry of Electronics and Information Technology is a very active nodal agency for cybersecurity.
  • Five of the six GGEs formed had representatives from India.
  • India is also an active participant at the OEWG.
  • India is also a member of the Shanghai Cooperation Organisation, which has also shown support for a code of conduct.
  • India also joined the Christchurch Call, which brought countries and corporations together on order for an increased effort in stopping the use of social media for promoting terrorism and violent extremism.

5.3 Need of active engagements

  • The cyberspace is becoming an increasingly contested and fragmented domain.
  • Going forward, the issue of cybersecurity will require better arrangements and more intense partnerships with additional safeguards.

5.4 India and Global Efforts

  • India needs to turn attention immediately on the issue of cybersecurity.
  • India needs to take both domestic and global efforts in this regard.
  • India should be an active participant in shaping and defining cyber norms.
  • India can also consider acceding to the Convention on Cybercrime of the Council of Europe (Budapest Convention).
  • There should be increasing participation and engagement in multi-stakeholder orientations as the Paris Call for trust and security in cyberspace.

5.5 India and domestic Efforts

  • There should be more clarity on legislation on data protection.
  • The private sector in India should be encouraged to participate increasingly in industry-focused processes such as the Microsoft-initiated Cybersecurity Tech Accord and the Siemens-led Charter of Trust.

6. CONCLUSION

Present there is a huge digital divide in India. However, the coming future is going to bridge this gap and India is expected to have a major portion of the next billion smartphones.

Therefore, it is imperative that cybersecurity is going to play a large role in the lives of Indians.

To prepare for the larger role of cyberspace in India, we need to work on a deeper public understanding of cyberspace, cybersecurity and its various dimensions.

Given the size and scope of cyberspace in India, it is too important to be left only to the experts.

ADDITIONAL INFORMATION

Indian Computer Emergency Response Team (CERT-In)

  • CERT-In is a functional organization under the Ministry of Electronics and Information Technology of the Government of India.
  • CERT-In is the national nodal agency to deal with cybersecurity incidents.
  • The CERT-In was established in 2004.
  • The Information Technology (Amendment) Act 2008 has provided for the following functions to be undertaken by CERT-In and has designated it to serve as the national nodal agency:
    • Collection, analysis and dissemination of information on cyber incidents.
    • Forecast and alerts of cybersecurity incidents
    • Emergency measures for handling cybersecurity incidents
    • Coordination of cyber incident response activities.
    • Issue guidelines, advisories, vulnerability notes and whitepapers relating to information security practices, procedures, prevention, response and reporting of cyber incidents.
    • Such other functions relating to cybersecurity as may be prescribed.

A quest for order amid cyber insecurity

1. CONTEXT OF THE NEWS

 

The present time is both, the best and worst for cyberspace.

Apple, Amazon, and Microsoft have amassed over a trillion dollars in market value since the beginning of the year 2020.

However, on the other hand, cyber-attacks have grown as well.

2. INCREASING CYBER-INSECURITY

2.1 Increasing malwares

  • A report puts the number of daily malware and phishing emails related to COVID-19 to over 18 million in a single week in April 2020 monitored by a single email provider.
  • This was in addition to more than 240 million COVID-19-related daily spam messages.
  • Twitter hackers and ransomware targets too are increasing by the day.

2.2 Cyber-attacks and States

  • Concerns about the role of states in cyber-attack are also surfacing as mentioned by Australia.
  • There are also allegations on China regarding hacking health-care institutions in the U.S. doing research on COVID-19 treatment.
  • The United Kingdom has warned Russian state-backed hackers targeting pharmaceutical companies working on the COVID-19 vaccine.
  • India has recently banned specified Chinese Apps stating that they are “engaged in activities prejudicial to the sovereignty and integrity of India”.
  • This act of the Indian Government adds another layer of complexity to the contestation in cyberspace.
  • Therefore, clearly the cyber insecurity of individuals, organizations, and states is expanding amidst the COVID-19 atmosphere.

2.3 Better understanding of Global Cyberspace

  • The world is increasingly moving in the digital space. People are adapting to new ways of digital interaction and an increasing number of critical infrastructure is turning digital.
  • However, despite the accelerated pace towards digital technologies, most of us do not understand the parameters of the transformation towards digital.
  • Much like the global public health, cybersecurity too is considered a niche area and is left to the experts.
  • The COVID-19 pandemic has underlined the importance of the global public health infrastructure and the need to abide by agreed rules.
  • On similar lines, a better understanding of the global cyberspace architecture is also imperative.

3. NO GLOBAL COMMONS

3.1 The global commons

  • International law identifies four global commons viz. the High Seas, the Atmosphere, Antarctica and the Outer Space.
  • The borderless global cyberspace is also considered a part of the “global commons”, however experts are of the view that it does not exist.

3.2 Border control on cyberspace

  • The view of cyberspace in terms of connectivity across national boundaries is an illusion.
  • Since the internet is dependent on the physical infrastructure that is under national control, the internet too is subjected to border control.
  • States control the national networks through laws in accordance with their international commitments.

3.3 Responsibility of States vis-a-vis cyberspace

  • States are also responsible for the following:
    • Ensuring cybersecurity,
    • Enforcing laws related to cyberspace
    • Protection of public good
  • Apart from their own actions, States are also responsible for actions taken from within their sovereign territory.
  • However, the implementation of the States' responsibilities towards cyberspace is difficult, since the infrastructure on which the Internet is dependent, falls within the jurisdictions of multiple states.
  • These states have different approaches towards the view of cyberspace and cybersecurity.

3.4 Multiple Stakeholders

  • There are multiple stakeholders in the cyberspace including both states and non-state actors.
  • The non-state actors play key roles with both benign and malignant intentions.
  • Furthermore, some networks are private which have different objectives than the states have.
  • At last, the cyber tools too have dual use, cheap and make attribution and verification of actions quite a task.

3.5 Developing cyber norms

  • Despite the presence of both state and non-state actors, only the states have the right of oversight.
  • There is no single authority for the global cyberspace like the World Health Organization, which can monitor, assess, advise and inform about the fulfillment of state commitments, in however limited or unsatisfactory a manner.
  • To put it simply we are still searching for the cyber "rules of the road".
  • Presently we are in the developing stage of “cyber norms” that can provide a balance between the competing demands of national sovereignty and transnational connectivity.

4. GAPS IN CURRENT PROCESSES

4.1 UN and Cybersecurity

  • In 1998, Russia raised the issue of information and communications technologies (ICTs) in international security on the UN agenda.
  • Since then, six Group of Governmental Experts (GGE) with two-year terms and limited membership have been working on the issue.
  • In addition to the GGE, last year, an Open-Ended Working Group (OEWG) began working on the same issue with similar mandates. The group is open to all and many states have shown interest in the group.
  • A report is expected by the next year.

4.2 Discussions in the group

  • The discussions are focussed narrowly in line with the mandate.
  • Issues that have been kept out are:
    • Internet governance
    • Development
    • Espionage
    • Digital privacy
  • Issues like terrorism and crime are acknowledged as important but the discussions on these topics are not as thoroughly done as in other UN bodies.

4.3 Outcome of the UN Exercise

  • The net outcome of the UN exercise on cyberspace is the acceptance that international law and the UN Charter applies to cyberspace as well.
  • On these lines, a set of voluntary norms of responsible state behavior was agreed to in 2015.
  • However, the aspects are circumstances in which the international law will be applicable have still not been addressed and various reports on the matter call for action including the recent report by UN Secretary-General AntónioGuterres’s entitled “Roadmap for Digital Cooperation”.
  • However, given the present geopolitical circumstances, there is very little hope of such processes being undertaken.

5. MORE ENGAGEMENT NEEDED

5.1 Expanding cyberspace in India

  • Generally speaking, technologies move faster and are ahead of the development of associated norms and institutions, similar is the case with cyberspace.
  • This provides India the opportunity with the time and space to develop our approach in tune with the relevance of cyberspace to India's future economic, social, and political objectives.
  • Despite the digital divide, India’s cyber footprint is expanding at an accelerated rate and therefore the rate of conflicts and crimes will increase too.
  • Under these circumstances, the Shared “rules of the road” become imperative.

5.2 India and Cyber security

  • The Indian Computer Emergency Response Team (CERT-In) under the Ministry of Electronics and Information Technology is a very active nodal agency for cybersecurity.
  • Five of the six GGEs formed had representatives from India.
  • India is also an active participant at the OEWG.
  • India is also a member of the Shanghai Cooperation Organisation, which has also shown support for a code of conduct.
  • India also joined the Christchurch Call, which brought countries and corporations together on order for an increased effort in stopping the use of social media for promoting terrorism and violent extremism.

5.3 Need of active engagements

  • The cyberspace is becoming an increasingly contested and fragmented domain.
  • Going forward, the issue of cybersecurity will require better arrangements and more intense partnerships with additional safeguards.

5.4 India and Global Efforts

  • India needs to turn its attention immediately on the issue of cybersecurity.
  • India needs to take both domestic and global efforts in this regard.
  • India should be an active participant in shaping and defining cyber norms.
  • India can also consider acceding to the Convention on Cybercrime of the Council of Europe (Budapest Convention).
  • There should be increasing participation and engagement in multi-stakeholder orientations as the Paris Call for trust and security in cyberspace.

5.5 India and domestic Efforts

  • There should be more clarity on legislation on data protection.
  • The private sector in India should be encouraged to participate increasingly in industry-focused processes such as the Microsoft-initiated Cybersecurity Tech Accord and the Siemens-led Charter of Trust.

6. CONCLUSION

Present there is a huge digital divide in India. However, the coming future is going to bridge this gap, and India is expected to have a major portion of the next billion smartphones.

Therefore, it is imperative that cybersecurity is going to play a large role in the lives of Indians.

To prepare for the larger role of cyberspace in India, we need to work on a deeper public understanding of cyberspace, cyber security, and its various dimensions.

Given the size and scope of cyberspace in India, it is too important to be left only to the experts.

ADDITIONAL INFORMATION

Indian Computer Emergency Response Team (CERT-In)

  • CERT-In is a functional organization under the Ministry of Electronics and Information Technology of the Government of India.
  • CERT-In is the national nodal agency to deal with cyber security incidents.
  • The CERT-In was established in 2004.
  • The Information Technology (Amendment) Act 2008 has provided for the following functions to be undertaken by CERT-In and has designated it to serve as the national nodal agency:
    • Collection, analysis, and dissemination of information on cyber incidents.
    • Forecast and alerts of cyber security incidents
    • Emergency measures for handling cyber security incidents
    • Coordination of cyber incident response activities.
    • Issue guidelines, advisories, vulnerability notes, and whitepapers relating to information security practices, procedures, prevention, response, and reporting of cyber incidents.
    • Such other functions relating to cyber security as may be prescribed.

Source: The Hindu

Is Internet Freedom Being Sacrificed For National Security?

1. CONTEXT OF THE NEWS

Amidst the ongoing border standoff with China along the Line of Actual Control (LAC), the Union Government decided to ban 59 'Chinese' apps in India.

The banning of these apps has once again brought on the surface, the question of vulnerability of Internet freedom at a time of national security.

This editorial analyses the Government's decision on the basis of the proportionality test.

2. NATIONAL SECURITY VERSUS DIGITAL RIGHTS

2.1 Whose rights are violated?

  • We need to be more specific about whose rights are being affected.
  • The rights of Chinese companies whose apps have been banned have surely been affected.
  • However, as far as the Indian individuals are concerned who used platforms like TikTokeither to run their business or gain popular, their rights have not been entirely violated as they go about their existing business by moving to another platform.

2.2 Discretionary use of Section 69A of the Information Technology Act (IT Act)

  • The Union Government has used its power under Section 69A [of the Information Technology Act], which has already been used by the government during a time of national security emergency.
  • However, the national security risk must be genuine and the government must clearly state the necessity of banning of the 59 apps.
  • Only clearly stated reasons for use of such discretionary power by the Union Government can clearly demarcate the trade-off between national security, and rights, both of which are equally important in their own domain.

2.3 Why Digital Rights are important?

  • In India there should be a certain basic understanding that regulation of the Internet or Internet-based services by governments has to respect basic human rights standards for at least two reasons:
    1. India is a constitutional democracy where citizens enjoy certain fundamental rights and basic freedoms guaranteed by the constitution.
    2. India is also a signatory to International Conventions like
      • International Covenant on Civil and Political Rights
      • Universal Declaration of Human Rights

2.4 The three-part test

  • The three-part test is a doctrine used in International law to evaluate the following acts of a government:
    1. blocking of any service
    2. blocking any access to a content
    3. taking other coercive steps that may intrude upon people’s fundamental rights and freedoms
  • The three tests are fairly simple and require that:
    1. the action that is very clear
    2. the action could not have been done by a less intrusive means
    3. the action follows standards of necessity and proportionality
  • In India, it is very clear that our fundamental right to free speech and expression extends to online content as well and the Hon’ble Supreme Court has affirmed the same.

3. THE CURRENT BAN

3.1 Evaluating the current ban

  • The blocking of an entire service and apps by the Union Government is remarkable and rather extraordinary and raises many concerns and questions.
  • Less intrusive measures - It is still unclear if the government could have undertaken a less intrusive measure to achieve the same result.
  • Security concerns - Concerns regarding security and especially data and cybersecurity are cited to justify the action of the government.
  • While the Indian law allows such actions on the grounds of security, presently the government does not have any legal basis to take clear action on because it itself has not enacted a law on that subject.
  • Experts have hailed that in this particular instance, concerns around national security or other geopolitical concerns have intervened to result in censorship administrative action and the test of a proportionate restriction might not have been met.

3.2 Impact of the ban on domestic companies

  • The banning of Chinese apps should be viewed in the context of the larger problem of the border standoff between India and China.
  • If the border standoff resolves, this will resolve on its own.
  • These apps were popular because they worked and China owes its place in the Global Supply Chain due to its production of desired quality at a competitive rate.
  • Indian tech companies should try to make their products globally competitive.

4. MISUSE OF SECTION 69AOF THE INFORMATION TECHNOLOGY ACT

4.1 Use of Section 69A

  • Some quarters have criticized the use of Section 69Aof the Information Technology Act.
  • One of the criticism is that Section 69A is not designed for data protection compliance.
  • Experts suggest that Section 69A provides a set for more specific violations rather than broad general violations.

4.2 Details regarding Section 69A of the Information Technology Act

  • Section 69A of the IT Act entails a limited set of defined grounds under which the government can take action.
  • The grounds mentioned under the act are wide, including the security of the state.
  • Over the last few years, the Union Government, as well as several state governments, have taken a very wide view of national security but data protection has not been one of them.
  • Similar actions were taken by other regulators sare usually initiated under a data protection framework wherein the entity is investigated to see if other mechanisms as orders and fines can be followed instead of using Section 69A.
  • We should also bear in mind that while striking down Section 66Ain the Shreya Singhal case the Supreme Court upheld Section, hence instead of the law a change in mindset is required.

4.3 What the government could have done?

  • Instead of initiating the process under the data protection framework, here we jumped to the topmost level.
  • There are two mechanisms under our existing legal framework regarding the blocking of content
    • The normal process by which a government department complains to the Central government officer and a committee reviews it,
    • An emergency process by which orders are issued and then a subsequent review is taken.
  • The Government should have issued the emergency blocking and the blocked platforms should have been given a chance to put up a defence.
  • Section 69A is a censorship power, a controversial one that is not well designed to protect people’s rights.
  • Banning of the Chinese apps should be seen as a proxy for a larger geopolitical battle between India and China.

5. TOWARDS A FAIRER SYSTEM

5.1 Lack in Present system

  • Currently, the Government of India asserts secrecy and confidentiality while blocking orders under Section 69A of the Information Technology Act.
  • The government should bring in more transparency and reveal to the public the reasons for such blocking of contents.
  • This is now a constitutional requirement as the Supreme Court in the AnuradhaBhasin judgment on Internet shutdowns held that any order blocking people’s rights to liberty, especially in relation to the Internet, requires to be published.
  • The Government should undertake broader reforms, including a review of Section 69A itself.
  • India has blocked tens of thousands of websites since the late 1990s, given the democratic setup of India, these numbers are shocking.

5.2 Change in mindset

  • The government mindset that agencies can work best when they work outside the law particularly on issues of national security needs to be changed.
  • We can learn from the example of the United States where security agencies work well within the fold of the law.
  • All security agencies must be brought under a legal framework with clear demarcation of everyone's power and associated consequences in case anyone oversteps their bounds.

6. CONCLUSION

Presently, India lacks a clear strategy in cybersecurity architecture although the government has been trying to resolve the legal ambiguity surrounding cybersecurity.

While the geopolitical reasons behind the government's decision make it a little more unfortunate it also allows China to claim a higher moral ground in trade talks.

Today we need an honest conversation around privacy and data that recognizes that we are part of a global interlinked Internet. That is not yet happening.

Given the border standoff with China and keeping national security interests in mind, a national strategy needs to be developed which contains and restricts online content in a manner that protects human rights but is effective as well.

ADDITIONAL INFORMATION

Section 69A in the Information Technology Act, 2000

  • 69A Power to issue directions for blocking for public access of any information through any computer resource.
  • 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, the 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.
  • 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.
  • The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.

Source:  The Hindu

The social contract needs to be rewritten

1. CONTEXT OF THE NEWS

COVID-19 pandemic has had an adverse impact on the lives of people on a massive scale and its disastrous and catastrophic impact has been felt beyond the disease itself.

Apart from the health sector, the COVID-19 has hit hard the economic and political spheres too.

While governments across the world have tackled the COVID-19 crisis in their own different ways with varying degree of success. This editorial analyses the response of modern governments to COVID-19 crisis and suggests suitable steps.

2. FINDING CAUSE

  • Governments around the world are clueless about dealing with the pandemic, especially concerning the problems and hardships being faced by the poor and marginalised sections due to the COVID-19 pandemic.
  • A few geographically small countries have been able to successfully contain the COVID-19 and its impact but these claims are hollow and short-sighted as all these countries are wealthy nations and their response to the pandemic is sealing their borders.

3. SOCIAL CONTRACT

3.1 The Social Contract Theory

  • Somewhere is the course of evolution, humankind’s ancestors came up with the concept of social groups and as a result, certain rules were decided which everyone would abide by.
  • This is the most elementary form of what today is called the ‘social contract theory’.

3.2 Social Contract in Monarchies

  • With the rise of monarchies and associated empires, the concept of social contract became more tangible and understandable viz. to obey an identifiable sovereign, who in turn was deemed to be god’s representative on earth.

3.3 Social Contract in Democracies

  • In democracies, the elected governments have not been able to derive the same legitimacy as monarchies with absolute power (god’s representative on earth).
  • With the birth of the concept of individual rights and fundamental freedoms, especially those of speech and expression, unquestioning obedience to governmental authority began to fade.
  • Some governments yearn for this 'unquestioned obedience’, which is also the holy grail of every autocrat.
  • Modern societies and modern governments also use the social contract theory as a base to derive legitimacy for their actions but rely more on the theory as expounded by Hobbes and Rousseau.

3.4 Two Agreements in Social Contract

  • Thomas Hobbes believed that man in the State of Nature was “solitary, nasty and brutish”, while for Rousseau, in the State of Nature man was “born free”.
  • However, despite their different interpretation and description of human behaviour in the state of nature, both agreed that the social contract comprises of not one but two distinct agreements.
  1. People come together and reciprocally renounced the rights they had against one another in the unconstrained state of nature thereby establishing a civil society
  2. People agree to confer upon one or more among themselves the authority and power to enforce the initial contract
  • Hence, the basic premise of the social contract is people coming together and agreeing to live under one common law and on judicial enforcement of those common laws.

3.5 Social Contract in Modern Governments

  • However, the philosophy of the modern day governments goes a step further. They believe that society is best served if a government or other type of institution takes on executive or sovereign power, with the consent of the people.

4. GREATER CONSOLIDATION OF POWER BY MODERN GOVERNMENTS

  • Modern Governments try to use the power democratically invested in them to decide what is in the best interest of the people.
  • There is a general trend across all modern democracies to bend individual free will towards the collective will.
  • The irony, however is that most leaders constantly invoke “the will of the people” when consolidating executive power.
  • Political analysts and experts are of the view that modern governments use social contract to legitimise the greater aggrandisement of power in the hands of the sovereign, under the garb of “public good”.
  • Some political analysts even go on to state that when the future historians will look back on the events taking place today, they would have an impression that people across the globe voluntarily surrendered their individual rights and basic freedoms to their governments, who exercised these powers with discipline and benevolence.

5. TWO INDIAS

5.1 Two Indias under COVID-19

  • There are two Indias under the threat of the COVID-19 pandemic.
  • Access to information about the COVID-19 pandemic, access to resources to avoid the disease as well as access to treatment of COVID-19 has not been equal.
  • First India is of those sections of the citizen who observe social distancing and take all precautions and largely obeys governmental directives about COVID-19 prevention.
  • Second India crowds railway terminals to travel long distances to come back home in the time of this distress and when failed by the government on all accounts, ultimately takes the drastic step of even walking those hundreds of kilometres, defying all governmental directives.
  • For second India, the impact of COVID-19 is disproportionately adverse and has almost nothing to do with the disease.

5.2 Response of the two Indias to the COVID-19 epidemic

  • The first, more privileged India responded with zest to the stirring call of “CVOID-19 prevention”, "flattening the curve" and took pride in observing the directives of covering face and hands, "Social distancing" and went about their daily lives.
  • Second India comprises of lakhs and lakhs of less privileged Indians who are already living in unhygienic, clumsy and ill-constructed hovels and slums in close vicinity.
  • Observing the mandated social separation of “6 feet” was and still is an impossibility and ‘social distancing’, an abstract concept.

5.3 The notion of “we are all in this together”

  • The slogan of “we are all in this together” was often used to express solidarity to the doctors, victims of COVID-19 and the underprivileged who are the worst sufferers of COVID-19 induced pandemic and stir a sense of brotherhood, but it is hardly so.
  • First India does not share the brunt of the COVID-19 pandemic with the poorest of Indians who are voiceless.
  • Professor H.L.A. Hart once said, “Freedom (the absence of coercion) can be valueless to those victims of unrestricted competition too poor to make use of it; so it will be pedantic to point out to them that though starving they are free”.

6. WAY AHEAD

6.1 COVID-19 and equality

  • The COVID-19 induced crisis has revealed that the governmental methods to deal with a crisis largely come to the aid of only those with a voice.
  • A perfectly egalitarian society is a utopia and all societies have some measure of inequality.
  • However, in highly unequal societies like those where the Gini Coefficient is above 0.4, different strata of society will have very different needs to deal with a crisis like COVID-19.
  • The COVID-19 experience tells us that societies that have lower Gini Coefficients (more egalitarian societies) deal with the crisis far better because a uniform approach works perfectly when society is perfectly equal.

6.2 A decentralised response

  • In the distressing times of a COVID-19 like crisis, the citizens look to the state for guidance and a safety harbour and consequently some sections of society seek a strong response from a strong leader.
  • However, when the source of power in an unequal society is centralised, the response to the crisis will result in unequal relief to different strata of society.
  • Hence, a centralised response will do very little to placate the needs of all the strata of society.
  • Societies that are more unequalrequire more decentralised response for effectiveness.

6.3 Need of a new Social Contract

  • The Social Contract Theory that gives leads to a centralised sovereign with overreaching powers has fared poorly to address the COVID-19 crisis and most probably will always fail against such a challenge.
  • The centralised sovereign will work well against a mighty external aggressor, but not against a microscopic pathogen.
  • Apart from a decentralised approach, also required is a state, which is sensitive and responds not only to the needs of those who cry out for help but also meets the requirements of those who are voiceless.

7. CONCLUSION

Thomas Hobbes described the mighty state as a “Leviathan” which rules with an iron first by the will of the majority. Hobbes argued that once a sovereign is chosen, citizens lose all rights except those the ruler may find it expedient to grant.

No democratically elected government would publicly espouse such a position but it is the unwritten premise underlying every rule and diktat, which is issued.

While the Leviathan has its own uses like in times of war or in a fight against terrorism, but the novel coronavirus cannot be defeated by a Leviathan. Only an empowered citizenry can defeat the coronavirus.

The social contract requires to be rewritten not by drastic violent methods of a revolution or anarchy but only by fundamental introspection and rethinking by the governing classes including bureaucrats.

ADDITIONAL INFORMATION

Social Contract Theory

  • A Social Contract is an act by which individuals agree to form a government
  • According to social contract theory, governments are established by the people who combine to achieve some goal
  • Thomas Hobbes, John Locke, and Jean-Jacques Rousseau were a social contract, theorists
  • They hypothesized the existence of a state of nature prior to any government

Effects of Social Contract

                                                

Source: The Hindu

Banning of the ‘Chinese Apps’

1. CONTEXT OF THE NEWS

Amid the rising tension and escalations between India and China on the LAC (Line of Actual Control), the Government of India announced an interim ban on 59 apps originating in China on 29 June.

This editorial analyses the move in its entirety.

2. BANNING THE CHINESE APPS

2.1 Why the ban?

  • The Union Government announced the ban on these apps with Chinese links citing “emergent threats” to India's sovereignty and national security.
  • The list of banned apps includes some very popular mobile apps, which have a combined user base running in several hundred million.
  • Some apps also have a significance presence in India in terms of revenue, employees, and payrolls.
  • The Ministry of Information and Technology revealed that it had received numerous complaints from various sources including the misuse of some of these apps to steal and surreptitiously transmitting users’ data to servers located outside India in an unauthorized manner.
  • Such actions ultimately impinge upon the national sovereignty and integrity of India, which is a grave concern and requires emergency measures.

2.2 Effect of the Ban

  • Some of these apps are very popular in India and have a wide user base.
  • These apps are the only source of income for Indian creators on some of these platforms.
  • The income of these creators and the offices and employees shut due to banning these apps could put a few thousand jobs at stake.

2.3 Legal Basis for the Ban

  • The Union Government has enforced the ban under the powers available to it under Section 69A of the Information Technology Act, 2000.

3. INFORMATION TECHNOLOGY ACT, 2000

  • The Information Technology (IT) Act, 2000 gives the legislative base and legal framework and sanctity to all electronic records and other e-commerce transactions (transactions occurring through electronic communication).

3.1 Some Highlights of the Act

1. Legal sanction to electronic documents.

2. Legal sanction to use of Digital Signature to authenticate an electronic record.

3. Details entailing Electronic Governance

4. Regulation of certifying authorities

5. Offenses and contraventions

6. Justice dispensation systems for cybercrimes - talks of an Adjudicating Officer with the powers of a Civil Court.

7. Establishment of a Cyber Regulations Appellate Tribunal - to hear appeals against the orders passed by the Adjudicating Officers

8. Establishment of a Cyber Regulations Advisory Committee to advice the government on any rules and purpose concerned with the act

3.2 Information Technology (Amendment) Act 2008 –

  • The IT Act 2000 was amended in 2008 to add the following important provisions:

1. Data Protection -There were no specific provisions regarding Data protection in the IT Act 2000. The IT Act 2008 introduces two sections to address this concern.

  • Section 43A (Compensation for failure to protect data)
  • Section 72A (Punishment for disclosure of information in breach of lawful contract.

2. Information Preservation - Section 67C provides for the Preservation and retention of information by intermediaries. It provides that:

  • Intermediary shall preserve and retain such information as may be pecified for such duration and in such manner and format as the Central Government may prescribe.
  • Any intermediary who intentionally or knowingly contravenes the provisions of sub-section (1) shall be punished with an imprisonment for a term which may extend to three years and also be liable to fine.

3. Blocking, monitoring and collection of information

  • Section 69A grants power to issue directions for blocking for public access of any information through any computer resource.
  • Section 69B authorizes to monitor and collect traffic data or information through any computer resource for Cyber security.

3.3 Section 69A in the Information Technology Act, 2000

69A 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 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, defence of India, the 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.

4. WAY AHEAD

4.1 Implementation of the Ban

  • The notification by the government will be followed by more specific and detailed instructions to Internet service providers (ISPs) to block these apps.
  • Users will see a message regarding the banning of the app on request of the government.

4.2 Government to seek more details

  • The two social media apps TikTok&Helo among the list of banned apps are operated by Bytedance (India) Technology Pvt Ltd and taken together to have more than 170 million active users in India.
  • Bytedance India is not owned by a Chinese entity, its parent entity Bytedance Ltd is registered in the Cayman Islands. The parent company has five subsidiaries, TikTok Ltd being one of them and also registered in the Cayman Islands.
  • Singapore-based entity TikTok Pte Ltd (registered under TikTok Ltd) handles operations in India and Southeast Asia.
  • A Chinese law requires the companies of Chinese origin to share data with the other country’s intelligence agencies, irrespective of wherever in the world they are operating and the Indian IT Ministry is soon expected to seek details from the companies running these data-sharing apps in India under this law.

5. DATA PROTECTION LAWS

5.1 Data protection laws in the world

  • Today most social and economic interactions are moving online and therefore the importance of privacy and data protection cannot be stressed enough.
  • Collection, use and sharing of personal information to third parties without the prior consent or even acknowledgment to the consumer is also a rising concern.
  • Today 132 out of 194 countries have legislations securing the protection of data and privacy.
  • In Africa and Asia, 55% of nations have enacted such legislation including 23 least developed countries.

5.2 Global Status of Data Protection Legislation

  • 66% Countries with Legislation
  • 10% Countries with Draft Legislation
  • 19% Countries with No Legislation
  • 5% Countries with No Data

5.3 General Data Protection Regulation (GDPR)

  • European Union General Data Protection Regulation (GDPR) is a watershed moment in data protection regimes in the last two decades.
  • The GDPR is designed to protect the personal data of E.U. residents.
  • Personal data refers to the data that relates to an identifiable living individual and includes names, email IDs, ID card numbers, physical and IP addresses.
  • The GDPR entails a fundamental shift in the understanding of the relationship between individuals and their personal data.
  • GDPR grants the citizen substantial rights in their interaction with data controllers and data processors.
  • Data controllers are entities who determine the reason and manner of collection of data such as a government or several websites.
  • Data processors are entities who process the data on behalf of controllers. When an E.U. firm outsources its data to an Indian firm for data analysis, the Indian firm here is a data processor.
  • The GDPR provides that a data controller will have to provide clearly distinguishable consent terms. It means that the consent terms cannot be hidden in a fine print incomprehensible to the layperson.
  • GDPR also requires data controllers to provide information on the ‘who collects the data’ and ‘how the data is collected’. 
  • It also provides individuals with the right to have their personal data deleted under certain conditions.
  • GDPR also makes reporting obligations and enforcement stronger.

6. THE PERSONAL DATA PROTECTION (PDP) BILL

India introduced The Personal Data Protection (PDP) Bill, 2019, in the lower house, Lok Sabha and is presently referred to a joint select committee.

The Bill defines three types of personal data (data from which a particular individual can be identified)

1. Sensitive Personal Data - it relates to financial data, biometric data, genetic data, sexual orientation, religious or caste data, biometric data and genetic data.

2. Critical Personal data - A data can be deemed as critical data by the government at any time and it includes data such as military or national security data.

3. General Data-  All non-sensitive and non-critical data.

The draft version of the bill was prepared by the Justice B N Srikrishna Committee. The bill has three important aspects that were not a part of the draft.

1. Storing and processing personal data

  • The draft required all fiduciaries to store a copy of all personal data in India. This provision was criticised by foreign technology companies who store most of Indians’ data abroad and even some domestic startups that were worried about a foreign backlash.
  • The bill removes this impediment requiring only individual consent for data transfer abroad.
  • The Bill requires sensitive personal data to be stored only in India and can be processed abroad only under certain conditions including approval of a Data Protection Agency (DPA)
  • However, Critical personal data must be stored and processed only in India.

1. The Bill mandates fiduciaries to give the government any non-personal data when demanded. Non-personal data refers to anonymised data, such as traffic patterns or demographic data.

3. The Bill requires all those social media companies, which are deemed as significant data fiduciaries to develop their own user verification mechanism.

  • A social media company is deemed significant data fiduciary on factors such as volume and sensitivity of data and their turnover.

Other Key provisions of the Bill:

  • The Bill provides for an independent regulator Data Protection Agency (DPA) which will oversee assessments and audits and definition making.
  • The bill requires each company to have a Data Protection Officer (DPO) who will liaison with the DPA for auditing, grievance redressal, recording maintenance and more.
  • The bill grants the right to data portability along with the right to access and transfer one’s own data to the individuals.
  • The bill also provides for an individual to remove consent for data collection and disclosure (Right to be forgotten).

7. CONCLUSION

  • Last year on the order of the Madras High Court, TikTok was banned in India for a few days, but later the court vacated the ban.
  • The nature of the ban this time however is very different. It affects more number of apps and the reasons for restriction are strategic and in the context of India's national security.
  • This ban could be a warning to other big Chinese business in India and in the broader context to China itself.
  • The step shows clear intent from the government and a decisive break from the past.

Source: Indian Express - https://indianexpress.com/article/explained/chinese-59-apps-ban-in-india-tiktok-camscanner-ucbrowser-6484032/