Government Vs Twitter: Can Big Tech Say No?

Twitter accounts of an investigative news magazine, a member of parliament, and an organisation supporting farmer protests in Delhi were among the handles that suddenly became inaccessible for Indian users on Feb 1. The takedown was in response to the central government’s orders under the Information and Technology Act.

But soon after, some of the accounts were restored. As of Friday, Twitter has again reportedly complied with the government’s orders and over 97% of the accounts flagged have been blocked.

The restoration and blocking of these accounts have raised several critical questions:

• The lack of transparency from the government in issuing such orders.

• The ability of big tech to refuse compliance citing international laws.

• And an intermediary’s liability if it fails to comply with the government’s orders.

The Back And Forth Between Feb. 1 And 12

Over the course of the last 10 days, according to Twitter, it received multiple blocking orders, including two emergency orders from the government that were issued under Section 69A of the Information and Technology Act.

Section 69A of the IT Act allows the government to issue reasoned and written orders to intermediaries or any government agency to block access to any information on cyberspace. The grounds on which such orders can be issued include:

• 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.

Twitter says it complied with the directions including the two emergency orders but subsequently restored the accounts in a manner it believed was consistent with the law.

This attracted a non-compliance notice by the government. Failure to comply with directions under Section 69A by an intermediary can result in jail term of seven years or a fine. However, experts point out that no such action has been taken to date against an intermediary in India.

Meetings between Twitter’s executive and the IT ministry ensued and as per reports, the social media platform has now complied with the orders blocking 97% of the accounts.

The Opaqueness Of 69A Orders

While orders under section 69A have to be reasoned and should, experts say they are seldom made public. The lack of transparency means that users whose accounts have been blocked have little recourse, privacy activists and technology lawyers point out.

In the absence of the actual text of the orders, it becomes difficult to probe their legal fitness, says Apar Gupta, executive director of Internet Freedom Foundation. An order of this nature, he adds, has to be reasoned and made public as per the Supreme Court’s 2015 ruling in section 66A case and more recently, in the J&K 4G ban.

Can Big Tech Say No?

It is correct that technology and social media firms have to comply with the law of the land but they can also narrow down or challenge orders which may result in unjustly preventing someone’s right of speech, Raman Chima, Asia Pacific Policy Director at Access Now, told BloombergQuint.

Expert say it is absolutely acceptable for a business to refuse to do something which is illegal. If the government feels there is a non-compliance of a legally issued order, it can always approach the courts. But the government cannot become the judge, jury and executioner, says Cheema.

Platforms must cooperate with the government's lawful orders but not at the cost of someone’s right to free speech, he said.

Consequences Of Non-Compliance

The information technology law allows the government to impose a fine or initiate proceedings which may result in imprisonment of the intermediary’s officials. The government has maintained that Indian laws will have to be respected by all who wish to conduct business in India.

On Wednesday this week, the government issued a statement saying its order directed a takedown of tweets and accounts using hashtags such as ‘farmer genocide’ and accounts supported by Khalistan sympathisers and backed by Pakistan.

Since then, Twitter has reportedly complied with most of the government’s orders. For the rest, it’s unclear what the central government might do.

If the government decides to go ahead with any action against Twitter, it would mean an end to the soft glove approach which has been adopted till now for the intermediaries, says Advocate Pavan Duggal. By refusing to comply with parts of the order, Twitter may have assumed an editorial role, he says.

If both sides refuse to blink and the case lands in court, it would give much-needed clarity on whether intermediaries have to blindly toe the government’s line or can push back against excessive orders, Duggal adds.

For now, things are at a standstill with stakeholders watching for the central government’s next move.