BitChat and its Blocking by India

UPSC Syllabus: Gs Paper 2- e-Governance And Gs Paper 3– Science and technology

Introduction

The Union Ministry of Home Affairs directed GitHub to remove repositories hosting BitChat, a decentralised Bluetooth-based messaging application developed by Jack Dorsey. The order cited concerns related to public order, national security and law enforcement. Critics argued that the government relied on Section 79(3)(b) instead of the prescribed blocking procedure under the IT Act. They also raised concerns over constitutional safeguards, digital rights and transparency in government action.

What is BitChat?

1. Decentralised Messaging Platform: BitChat is a peer-to-peer messaging application that works through Bluetooth mesh networks. It does not require the internet, central servers or phone numbers.
2. Bluetooth Mesh Technology: Every nearby device acts as both a client and a server. Messages move from one device to another through multiple hops, allowing communication over a wider area.
3. No Central Infrastructure: Unlike traditional messaging apps, BitChat does not depend on central servers that can be monitored, censored or shut down. It creates temporary communication networks among nearby devices.
4. Privacy and Network Independence: The platform is designed to provide censorship resistance, surveillance resistance and infrastructure independence. It continues to function during internet shutdowns, protests, natural disasters and in areas with poor connectivity.
5. Anonymous Communication: Users can communicate without mandatory registration, phone number verification or centralised logging of messages, making communication more private.

Government’s Blocking Order

1. Direction to GitHub: On 23 July, the Indian Cyber Crime Coordination Centre (I4C) directed GitHub to disable access to three BitChat repositories, including the Android application and release files, within three hours.
2. Legal Consequences for Non-Compliance: The notice warned that failure to comply could lead to the loss of safe harbour protection and even criminal prosecution.
3. Concerns over Law Enforcement: The government stated that BitChat’s decentralised design makes lawful interception, attribution and investigation by law enforcement agencies very difficult.
4. Risk During Public Order Situations: The order argued that the application could help users avoid lawful surveillance and bypass restrictions during internet shutdowns, riots, organised crime, terrorism and public order situations.
5. Possible Security Threats: According to the order, decentralised communication platforms could be exploited for unlawful assemblies, violent protests, misinformation, radicalisation, criminal conspiracies and activities affecting the sovereignty, integrity and security of India.

Legal Framework Governing Online Content Blocking in India

1. Notice Under Section 79(3)(b): The notice was issued under Section 79(3)(b) of the IT Act, 2000 read with Rule 3(1)(d) of the IT Rules, 2021. It directed GitHub to disable access to the repositories.
2. Safe Harbour Protection: Section 79 allows intermediaries to enjoy safe harbour protection. This protection may be lost if they fail to remove unlawful material after receiving a valid government notice.
3. Duty to Preserve Evidence: The notice required GitHub to remove access without destroying evidence, so that future investigation is not affected.
4. Section 79 Is Not a Blocking Power: The provision deals with intermediary liability but does not itself authorise blocking of online content.
5. Blocking Under Section 69A: Public access to online information is generally blocked under Section 69A of the IT Actand the Blocking Rules, 2009.
6. Procedural Safeguards: Section 69A requires a hearing, written reasons and review before issuing blocking directions.
7. Grounds for Blocking: The law permits blocking only on grounds such as national security, public order and prevention of incitement to cognisable offences.

Major Concerns

1. No Unlawful Content Identified: The Internet Freedom Foundation (IFF) argued that the repositories do not contain any identified unlawful content. The order is based only on the application’s possible misuse.
2. Technology Rather Than Content Targeted: IFF stated that the order objects to BitChat’s ability to work during internet shutdowns, instead of pointing to any illegal communication.
3. Challenge to the Legal Basis: IFF argued that using Section 79(3)(b) for blocking bypasses the safeguards available under Section 69A.
4. Questionable Legal References: IFF also questioned the notice for referring to Section 43 of the IT Act along with conspiracy and abetment provisions of the Bharatiya Nyaya Sanhita, 2023 against a platform that only hosts code.
5. Three-Hour Deadline: The notice required compliance within three hours, giving very limited time for legal examination or judicial recourse.
6. Proportionality Concern: IFF argued that the order fails the proportionality standard laid down by the Supreme Court in Anuradha Bhasin (2020).
7. Effectiveness of the Takedown: Removing GitHub repositories does not remove BitChat from devices where it is already installed. The decentralised mesh network can continue functioning without central servers.
8. Transparency and Accountability: Critics demanded publication of takedown orders, internet suspension orders and the legal basis for deploying signal jammers to improve public accountability.

Way Forward

1. Need for Legal Clarity: The dispute raises questions about whether Section 79(3)(b) can be used for blocking or whether such actions should always follow the procedure under Section 69A.
2. Publication of Blocking Orders: IFF demanded that all takedown orders and the reasons behind them should be made public to improve accountability and legal scrutiny.
3. Ensure Proportionate Restrictions: Restrictions on communication platforms should remain limited to what is necessary. They should satisfy the proportionality principle laid down by the Supreme Court in Anuradha Bhasin (2020).
4. Improve Transparency: Blocking directions, internet suspension orders and the recorded reasons should be made public to strengthen accountability and allow legal scrutiny.
5. Balance Security and Rights: Regulation of decentralised communication platforms should protect national security and public order while respecting constitutional safeguards and lawful communication.

Conclusion

The BitChat controversy highlights the challenge of balancing national security, public order and constitutional freedoms. It also raises questions about the legal procedure followed for online blocking. The issue underlines the need for transparent government action and proportionate restrictions. At the same time, it emphasises protecting effective law enforcement and fundamental rights within the existing legal framework.

Question for practice:

Discuss the features of BitChat and examine the legal and constitutional issues arising from the Government of India’s decision to block its repositories.

Source: The Hindu