Law & Information Technology Assignment

“Case study of Data Protection TikTok and PUBG and

national security and data protection implications”

Law & Information Technology Assignment

Submitted By

Name: UZAIR ULLAH KHAN

Student ID: 20167708

B.A.L.L.B (9th Semester) (Regular)

Faculty of Law, Jamia Millia Islamia

Submitted to Dr. Ghulam Yazdani, Associate Professor

(Faculty of Law, Jamia Millia Islamia, New Delhi)

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 Law & Information Technology Assignment

TABLE OF CONTENT

1. Acknowledgement

2. Abstract

3. Introduction

4. What is Information Technology Law?

5. Data Privacy and Security

6. Protecting people from the future

7. Data protection from TikTok and PUBG for national security

8. Why India banned PUBG Mobile and others?

9. Conclusion

10. Bibliography

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ACKNOWLEDGEMENT

I take this opportunity to express our profound gratitude and deep regards to my professor Dr.
Ghulam Yazdani for his exemplary guidance, monitoring and constant encouragement
throughout the course of this assignment. The blessing, help and guidance given by his time
to time shall carry us a long way in the journey of life on which we are about to embark.

I also take this opportunity to express a deep sense of gratitude to my friends for cordial
support, valuable information and guidance, which helped me in completing this task through
exhaustive research.

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 Law & Information Technology Assignment

ABSTRACT

Author: UZAIR ULLAH KHAN

In yet another surgical strike on malicious Chinese apps, the Indian government on
Wednesday banned 118 apps over national security concerns, including the immensely
popular PlayerUnknown’s Battlegrounds (PUBG) Mobile, Baidu and couple of virtual private
networks (VPNs) that allowed access to TikTok that was earlier banned.

In this case I have discussed how “This move will safeguard the interests of crores of Indian
mobile and internet users. This decision is a targeted move to ensure safety, security and
sovereignty of Indian cyberspace.”

PUBG was not banned in India earlier as it is not entirely Chinese. The game has been
created and managed by Bluehole which is a South Korean organisation. Further it was
banned as apparently it is a Chinese app which was using Tencent, a South Korean platform.
The compilation of these data, it is mining and profiling by elements hostile to national
security and defence of India which ultimately impinges upon the sovereignty and integrity of
India.

Key Words-

PUBG, TikTok, Cyber Security, Data Protection, Chinese Apps.

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INTRODUCTION

What is Information Technology Law?

Information technology law provides the legal framework for collecting, storing, and
disseminating electronic information in the global marketplace. Attorneys practicing in this
area of the law represent individuals and businesses from all different industries. They help
structure information technology transactions in a way that maximizes the client's economic
benefit while ensuring regulatory compliance. A great deal of emphasis is also placed on
anticipating potential sources of dispute between the parties to a transaction, and crafting
agreements that address these concerns, thereby reducing the risk of litigation.

When disputes arise in the field of information technology that cannot be resolved outside of
the court system, a lawyer specializing in these types of cases can prove a powerful advocate
compared to a general legal practitioner. Information technology law firms tend to hire
lawyers with practical experience working in the industry prior to entering the legal
profession. With such a background, a lawyer is more effective at explaining technical
concepts to a judge or jury, and he or she will likely have contacts within the industry that
make finding consultants and expert witnesses less difficult. Clearly, information technology
law is a niche practice. Those looking to hire an attorney should bear this in mind.

Data Privacy and Security

Much of the litigation that occurs in the field of information technology results from
enterprises failing to keep customer and employee information secure. Now that it is
primarily stored in digital format, sensitive information is susceptible to theft on a scale
unimaginable in previous generations. Hackers and other cyber criminals routinely target
financial institutions, e-commerce websites, and ordinary businesses, sometimes gaining
access to thousands of customers' data all at once. This can lead to various legal claims, from
government enforcement actions to class action consumer lawsuits.

Companies that have any presence on the internet should act proactively to avoid these

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problems. Information technology lawyers are available to audit security systems and
policies, and to recommend any necessary changes. If a breach has already occurred, an
experienced legal team can represent companies in investigations by the FTC or state
attorneys general, and defend against civil litigation brought by private parties. Data privacy
and security issues can arise at any time. To succeed in today's business environment, it is
critical to stay ahead of the curve and make safeguarding digital information a priority.

Protecting people from the future

Technology law isn't going anywhere soon. In fact, it will only become more and more
important as new technologies emerge. And it won't just focus on the technical issues like
data storage, property rights, or the technicalities of licensing agreements. Instead, it's going
to have some pretty big issues to tackle, issues that could have a profound impact on almost
every aspect of our lives.

Donald Trump introduced the term ‘fake news’ into or vocabulary during his 2016
presidential campaign. And while there was nothing particularly original about pointing out
media bias, the subsequent fascination with 'fake news' revealed how a large section of the
public no longer trust mainstream media sources. But what happens when we can no longer
distinguish between what's fake and what's real? Well, we might find out sooner than we
would like. A few months ago, an unnamed software developer designed an AI neural
network audio program that mimicked the voice of Dr. Jordan Peterson, a Canadian
psychology professor whose writes and speak about free speech issues and the state of
academia today. The 'deep fake' software allowed users to make Peterson say whatever they
wanted, with worrying consequences. While it's still possible to spot the difference between
the real and the fake Peterson, the similarities are starling. What's more, these kinds of
technologies are still in their infancy, and who knows where they might lead us to? If 'deep
fake' tech becomes indistinguishable from the real, then whoever controls the technology
could wield an enormous (and terrifying) amount of power.

Similar concerns were raised by PayPal creator Elon Musk and philosopher Sam Harris. In a
series of interviews and podcasts appearances, both have warned about the dangers of
devolving too much responsibility to artificial intelligence and the impact of automation on
the unskilled and semi-skilled labor markets. Predicting the future has always been extremely
difficult, but emerging technologies have made it practically impossible. Still, whatever the

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future brings, technology law will likely play a vital role part in regulating how we can use
the next-generation technologies, or even we can even use them at all.

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DATA PROTECTION FROM TIKTOK AND PUBG FOR NATIONAL SECURITY:

The Government of India (GOI) has banned 118 apps of Chinese Origin since June 29,
2020 like TikTok, SHAREIt, UC Browser, CamScanner, Helo, Weibo, WeChat and Club
Factory, naming a few.1 This declaration by the GOI met with varied reactions and reviews
ranging from a section of the populace hailing it as a fitting reply to the ‘misadventurism’ by
the Chinese at the Galwan Border in Ladakh to another section who perceived this rebuttal as
a mere symbolic retaliatory measure. The latter even went in so far as to gauge the suitability
in the backdrop of strategic and economic prudence. The tenability in the context of global
trade bodies like World Trade Organisation (WTO) and the susceptibility before the law of
the land are all being fiercely debated. This article proposes to understand the effect and
lacunas of such mass ban imposed by the Indian Government.

TikTok was the most popular Chinese app before the Indian government banned Chinese
apps. TikTok’s Indian userbase was at number 1 in almost every category of the app in terms
of active users to downloads and revenue. It is now revealed that there was another category
in which Indian users were at the top and that is the videos removed from the app. 3.7 crore
videos were removed from India by the Chinese company.

The Press Information Bureau (PIB) notification, under section 69A of the
Information Technology Act, 2000 read with the Blocking rules, 2009, gives reasons for such
ban is being based on the justification that these apps are engaged in activities which
are prejudicial to user privacy and the sovereignty of India.2

It’s the season to ban, boycott and abandon – in just a matter of a couple of weeks we have
witnessed 1,032 brands join the #StopHateForProfit Facebook boycott campaign globally,

1
The Hindu Explains| ‘What will be the impact of Chinese apps ban?’ July 05, 2020 K. Bharat
Kumar. https://www.thehindu.com/news/national/the-hindu-explains-what-will-be-the-impact-of-chinese-apps-
ban/article31991127.ece

2
The Wire | ‘Where does India’s Ban on Chinese Apps fit into the Global Trade Debate’, July 5, 2020,
https://thewire.in/tech/india-china-apps-global-trade-debate.

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India deciding to ban 59 Chinese apps including TikTok and WeChat, while tech giants
Google, Facebook and TikTok decided to leave Hong Kong due to its new security laws.

The common thread among each of these is the intertwining of geopolitics and technology.
Both continue to impact each other’s sphere of influence. With the rise of nationalistic
sentiments, countries are increasingly scrutinising potential national security threats posed by
data leaks, and are subjecting software and hardware companies, especially those owned and
operated by foreign companies, to comply with stricter checks, norms and policies. In some
cases, we've seen outright bans.

India's government claims these apps are using data illegally, and secretly collecting
information from people's phones when they download the apps.

It says it letting its citizens using these apps is a threat to India's national security.

The ban was announced on 27th September and it followed clashes at the India-China border
in the Himalayas, in a region called the Galwan Valley, which is in the north of India.

This is not the first time that TikTok has been accused of misusing users' data and passing it
on to the Chinese government.

In October 2019, TikTok hit back at these claims from United States law makers saying: "We
are not influenced by any foreign government, including the Chinese government; TikTok
does not operate in China, nor do we have any intention of doing so in the future."3

After the ban was announced, the head of TikTok in India, Nikhil Gandhi, released another
statement challenging the Indian government's accusation of TikTok misusing data.

"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," he said.

In terms of Section 69A of IT Act, the Government, if satisfied and for the 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

3
Gadgets 360: NDTV| ‘JioMeet: Reliance Jio launches free video conferencing on Zoom’, July 3, 2020
https://gadgets.ndtv.com/apps/news/jiomeet-reliance-jio-launches-zoom-competitor-video-conferencing-app-
2256165

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generated, transmitted, received, stored or hosted in any computer resource, when the same is
against the interest of sovereignty and integrity of India, defence of India, security of the
State etc. However, the action taken by the Government was disclosed to public through a
Press Release and the order, if any, in terms of Section 69A of the IT Act is not made
available. In the absence of detailed order by the Government, the action to ban the 59
applications is void ab inito and is likely to be set aside as the same is not in conformity with
the requirement under Section 69A of the IT Act.

As per the Press Release, the material placed before the Government for its satisfaction,
which is a condition precedent for taking actions under Section 69A are the (1) complaints
received from various sources to the Ministry of Electronics and Information
Technology; (2) the recommendations made by the Indian Cyber Crime Coordination Centre,
Ministry of Home Affairs; (3) the representations raising concerns from citizens regarding
security of data and risk to privacy relating to operation of certain applications;
and (4) the representations received from public by the Computer Emergency Response Team
(CERT-IN) regarding security of data and breach of privacy. However, the press release fails
to provide any facts/ grounds as to how the Government has arrived at the satisfaction in
terms of the material available before taking action under Section 69A of the Information
Technology Act, 2020.

Why India banned PUBG Mobile and others?

The Ministry of Electronics and Information Technology (MeitY) said that the apps were
prejudicial to the sovereignty, integrity, defence of India and public order.

The ministry further said that it had received several complaints of misuse apps on Android
and iOS platforms. These complaints alleged that these apps were stealing and surreptitiously
transmitting users’ data in an unauthorised manner to servers which possibly had locations
outside India.

“The compilation of these data, its mining and profiling by elements hostile to national
security and defence of India, which ultimately impinges upon the sovereignty and integrity

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of India, is a matter of very deep and immediate concern which requires emergency
measures,” the ministry said in a statement.

The action came after the fresh Chinese incursion attempts in Indian territory at Pangong Tso
in eastern Ladakh.

“This move will safeguard the interests of crores of Indian mobile and internet users. This
decision is a targeted move to ensure safety, security and sovereignty of Indian cyberspace,”
the statement added.

What industry watchers say

Mishi Choudhary, a technology lawyer working in the US and India, explained the law under
which the government imposed a ban on the applications.

The Meity had said it was invoking its power under section 69A of the Information
Technology Act, read with the relevant provisions of the Information Technology (Procedure
and Safeguards for Blocking of Access of Information by Public) Rules 2009.

“The section gives the government power to ban any information in the interest of
sovereignty and integrity of India, defence of India, security of the state, friendly relation
states, foreign states or public order or for preventing incitement to the commission of any
cognizable offence,” she told Hindustan Times.

Nikhil Pahwa, the founder of publication Medianama, pointed out that China cannot continue
to control its own internet ecosystem and at the same time benefit from the openness of the
internet in other countries.

“Given the control that the Chinese government exercises over Chinese companies, I think
there is a risk of them being used against Indian citizens, and in the interest of the security of
India's internet infrastructure, the government has taken the right action. China should realise

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that it can't have it both ways: tight control over its own internet ecosystem, while benefiting
from the openness of the internet in the democratic world,” he said.

The ministry said that it has decided to block 118 mobile apps in view of information
available that “they are engaged in activities which are prejudicial to sovereignty and
integrity of India, defence of India, security of state and public order”. The ministry received
many complaints from various sources including several reports about misuse of some mobile
apps available on Android and iOS platforms for stealing and surreptitiously transmitting
users’ data in an unauthorised manner to servers which have locations outside India. In July,
the government barred 47 Chinese apps from operating in the country, which were largely
clones of the previously 59 apps banned in June.

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CONCLUSION:

The Government, imposing a blanket ban on the 59 applications by giving common grounds
and reasoning without considering the individual case for restricting the use of each
application has directly contravened the provisions of Section 69A of the Information and
Technology Act, 2002. Moral or nationalist arguments in response to the restriction imposed
cannot stand legal scrutiny in a court of law. Such actions in future, even if aimed at gaining
political mileage must be designed to sustain legal challenge.

The whole controversy is a useful reminder that in future, source of opulence and conflict
will be informational in nature and hence, the strong data protection law is the need of the
moment. While other countries are enacting special legislations for protection of their data,
the Government in India is threatening, imposing and revoking bans on foreign data
companies when less intrusive measures can be opted for. In fact, a comprehensive
legislation for protection of data namely, Personal Data Protection Bill, 2019 (“Personal
Data Bill”) is currently under the scrutiny of the Joint Parliamentary Committee. The
Personal Data Bill is one of the rare laws aiming at extra-territorial enforcement. The
provisions of the Personal Data Bill, applies to not only data collection and processing within
India but also to the processing of personal data by data fiduciaries or data processors not
present within the territory of India i.e. by overseas entities. In other words, all foreign data
companies offering services to Indian citizens would have to specifically submit to the
proposed Indian data protection law.

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BIBLIOGRAPHY

• Tech.hindustantimes.com
• Ipleader.in
• Lawstudies.com
• Indiacode.nic.in
• Vidooly.com
• Bbc.co.uk
• Gadgets360.com
• Economictimes.com

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