THE NEED FOR AN UPGRADED EMPHASIS ON AN INTERNATIONAL DIGITAL LAWFARE STRATEGY BY INDIA: A NOD FOR/ AGAINST AN IMPACTFUL CHANGE? BY - JOHN MARIADAS
THE NEED
FOR AN UPGRADED EMPHASIS ON AN INTERNATIONAL DIGITAL LAWFARE STRATEGY BY INDIA:
A NOD FOR/ AGAINST AN IMPACTFUL CHANGE?
AUTHORED BY
- JOHN MARIADAS
Introduction
India and her usage of lawfare in the
international arena has been a question of concern in multiple scenarios where
the invoking of an international lawfare was evident and visible in situations
where the government decided to counter the prevalent tensions between nations
like Pakistan and most recently against China. India, being a nation that is
emerging to be one among the strongest global powers, therefore has been
attempting to wage lawfares with the ultimate intention to combat the combat
further tensions and thereby take due care of the national security. India’s
one among the most remarkable steps towards international lawfare, alongside
the abrogation of Article 370 is the banning of Chinese apps in India and the
furthered recommendation of the Ministry of Home Affairs to ban a yet another
set of 59 Chinese mobile applications, attaching the same to the national
concern over its security post the Galwan Valley strike.[1]
Irrespective of understanding the
impact of such a step taken by the nation on the economic relations,
prioritising national interest and security turns out to be landmark move in
the international perspective and representation. Although the demands over
Chinese products and machinery stands high with a bilateral financial
connection of around USD 125 M in 2020[2],
the lawfare initiated on the digital arena makes the same even more challenging
and noteworthy. In order to counter, a
national like China with the immense power and influence it holds globally, more
than a geopolitical move, India has chosen a strategic approach[3]
which is apparently a green signal towards the future possibilities of an
effective lawfare by making the best use of its domestic laws and
constitutional back up in instituting a digital warfare, which would
automatically lead to the empowering of the nationally developed applications,
their developers and the scope of India in the forefront of digital era, adding
on to the multiple possibilities and nuances in future[4].
Why India
needs to wage a digital lawfare?
Lawfare, is a strategic approach or a
movement against the adversary, in this case the nation who is on the counter
side as a non-ally where the legislations underpinned and prevalent, whether
domestic or international is used or deployed. This is the straightjacket
understanding of the term as coined by Charles Dunlap Jr.[5]
The usage of legislations makes it even more comprehensive and adhering to the
peaceful strategy of countering the counterpart with the aim of addressing any
motive or motion against the national interest and security as and when
concerned. The aspect of making law as a prime weapon in the warfare has been
evident and in use by multiple nations. Speaking of lawfare may contemplate the
thought process to imperialism, where the strategy has been equipped by nations
like the US and China where a manipulative usage of the UN Charter was visible
in a sinister expansion attempt over nations such as Iran, Libya and towards
the South of China Sea respectively. The international community has been
addressing this to an extent where such usage of the prevalent stance in
multiple attempts. The nature of lawfare is normative and hence could bring
about multiple impacts and implications over nations.
The International Court of Justice
via its most recent judgement had re-embarked the aforesaid scope by preventing
the cross-border data transfer from the EU to the US in Schrems-II[6] by
identifying the prevalent hypocrisy and ambiguity in the understanding of the digital
privacy and data protection of its citizens as assured in their
well-established constitution. The decision of the ICJ and the stance of EU
brought about the relevance the EU provides to its citizens when it comes to
personal data protection and privacy and its upheld stance on human rights and
constitutional values when it comes to putting nation at first. The
cross-border data transfer was undoubtedly non-consonant with the EU convention
on Human Rights and hance invoking or waging a digital lawfare by the EU
against the US by questioning and challenging the data transfer, being
specifically against the national interest and security could nonetheless be
prevented and stopped by rather ignoring the counterpart in possible strained
relations in the upcoming future. Hence, at multiple facets and tenets, lawfare
on a digital perspective is justified.
The India-China scenario is a major
example of how the banning of apps and other levelled stands followed by the
objections raised by China against India at the WTO is moving towards a digital
lawfare in its inherent and innate nature. India however, has not succumbed to
the aforementioned accusations thrown at and has defended the same by stating
the act of India was within the ambit and purview of the GATS (General
Agreement on Trade in Services) and hence has not stepped beyond any reasonable
restrictions that were expected to be followed and adhered to. Moreover, India
similar to EU’s stand in the previous scenario stated on the importance to give
priority to the fundamental right of its citizens to privacy as enshrined by
the constitution. The central government has hence relied on the bi-argument of
(1) Privacy concerns of its citizens (2) Chinese relations with the
international organizations, alongside the concerns raised over the national
security where we are left at a scenario to handle with a hostile neighbour.
The situation with China is only one
among the multiple scenarios India might face in future. In a situation like
what EU had to undergo when the relation involving transfer of data with the US
was concerned, even India would be left with no option but an equipped lawfare
with questioned violations from the grassroot level.[7]
When the surveillance of the citizens and their private data is concerned, a
lawfare is the prime option prevalent. Now, in a case where the data dealt with
the citizens of the nation are concerned, one among the prime ways in which the
dilution and leakage of data might possibly happen is via the concerned foreign
mobile applications and software. There are global examples of spying, data
leakage which had panicked the major nations under the developed line and
thereby creating tensions on security with the initiations of a cyberwarfare. [8]
Chinese
apps’ ban in India and the impact in
the digital
lawfare strategy
While developing a strategic toolkit
with the ulterior motive of a digital lawfare, India needs to succumb to
multiple consequences and possibilities in balanced state before taking another
major leap. However, for a matter of fact, the same has the biggest scope and
necessity as a demand of the day. In addition to the prevailed scenario, the
change of stance India chose to step ahead in the Huawei and its participation
in the 5G trials along with restraint on the Foreign Direct Investments of
India in China. Now, the aforementioned balance is to be struck in countering
legally the in-return defence China chose at WTO where the impact post ban and
stance in FDI where the nation was apparently accused of discriminatory
behavioural practice against China. On a counter scenario, India is justified
in the strained and limited relationship it intends to maintain with a hostile
country like China by cutting ties in the digital platforms.
When the dependence the banned apps
and the immense FDI investments created had an apparent development of both
digital and economic dependence where the action of such immense magnitude will
have apparent direct impact on the prevailing economic conditions over the
nation, the scrutiny if the effects in consonance with the need to check upon
national security becomes validated and effectuated. There is multiple
internationally accepted and expected standard of behaviours to which nations
including India, which has an extensively immaculate constitutional basis need
to keep up and keep pace with. As far as the digital warfare in its entirety is
concerned, banning of Chinese mobile applications is only one among the major
leaps taken by the nation alongside the FDI decisions and the Huawei
strategy.
Restrictive
entry to 5G network- Huawei & ZTE-
Another
strategy?
The case of deciding whether the
permitting or restricting Chinese supported Huawei and ZTE has been a concern
due to the changing conclusions brought forward by the Department of
Telecommunications where the impact of the same on the Indian 5 G market was
initially identified to be non-threatening and later otherwise. The Chinese
espionage being assisted by the said companies where the initial concern and
later was identified to be a non-effective aid to the Indian market. The
steering committee[9]
established on this regard had earlier identified that these companies
apparently did not create a threat in the 5G high level forum observation
according to 2018 thereby leading to the situation where these companies were
invited to be a part of the 5 G trials that followed in the year 2019. However,
things have twirled up where the ministry has now brought about its statement
on the possibility of avoiding or omitting the involvement of the companies
being deployed with the telecoms in India in the 5G venture and further
developments creating a tension between the nations, apparently becoming one
among the arguments made by China in the WTO forum against India, accusing for
discriminative treatment.
However, the Indian government has
not expressly reacted to the claim, neither via the ministry or the government
directly. Hence, such proposal was not recognized from the very initial stage.
It is ideal for the nation to look into the security concerns of these products
internally considering the impact the same could have on the Indian and
international markets. The manufactured products, hence to be on a safer side
should be subjected to precise scrutiny and study. The security audit so
involved, which calls for both certification and a security testing as required
and mandated by Indian Telegraph (Amendment) Rules, 2017. This scrutiny
followed by the certification and recognition become relevant and a necessity
when such procedures are effectively undertaken rather than causing unnecessary
delays and procedural failure whatsoever. Therefore, since, the procedural
verification has not yet been completed and fulfilled as procedurally required,
the restrictions that possibly may or may not be imposed upon the assumed
espionage cannot be categorized as a waged attempted lawfare.
India on the choice of moving ahead
to counter national dependence upon hostile nations in the arenas of
technological and economic purviews is an effective opening towards digital
lawfare that is nowhere restricted or restrained except the matter of fact of
possibility where the relations between two nations that apparently become the
adversary and decider. However, when aspects like national security and
citizens’ interests are concerned the same will be prioritized above. Unless,
the nation initiating a digital lawfare stands within the bilateral and
multilateral agreements to which it is a signatory to and is not against the
domestic legislations to which the adherence is expected alongside the
constitutional perspective of it. Hence, one the prioritising of agenda
concerned is fulfilled without countering or going against its own principles
there is no reasonable objections in choosing digital lawfare.[10]
The answerability and accountability come into picture when there has been an
identified violation of internationally followed and accepted principles
alongside the decisions of the signatory nations involving the said agenda.
Chinese
Foreign Direct Investment- An economic vis-à-vis digital lawfare strategy
toolkit
The unencumbered Chinese influence in
the Indian markets attempts to be restrained with the added restriction on the
Foreign Direct Investment of the Chinese companies in India. Since, the same
has also been countered by Beijing in the WTO, the same will also have future
prospects in becoming a lawfare model developed by India against China. According
to the said restraint precisely, a prior handed state approval is required by
the foreign companies in order to establish their entry into Indian markets.[11] This
has been officially declared as a mandate by the Ministry of Commerce via an
official press note. There have been no specific references on China but the
same action of the Government has been taken up by China as an indirect blow
against their FDIs, nonetheless for a matter of fact that the same will have
direct impact on the economic relations with China. The decision has not been
reasoned although the decision was specific on the agenda. But questions on why
or why not are not yet addressed. The impact if the said regulation will have a
very potential impact on multiple international investments India, for that
reason not just China that has enumerable stakes in nations worldwide.[12]
The consistent and integral
investments made by Chinese companies are notable high in count and number and
hence the impact is mostly felt on the Chinese companies which have put in
multiple noteworthy investments in the Indian companies with an unavoidable
hand in most of India’s industry unicorns.[13]
Reports suggest that the Chinese Tech investors have had investments amounting
to approximately $4 B upon India via the start-ups. India till date does not
have an internal committee that has been set up for the mere purpose of looking
into the reviewing of the foreign investments combating to national security
and related aspects concerned and hence this has been one among the moves that
could effectively substitute the never ending need to have had ana internal
committee that could effectively look into the matters inter-related to the
FDIs. Further, if India could set up committee with experts and departmental
heads who could exclusively deal with the foreign investments via an impact
analysis taking lessons from the US where a committee on Foreign Investment has
been in force for a long time.[14]
The power of the committee to explicitly and outrightly reject the investments
if in case the same stands against national interest and security is an
effective measure and mechanism with no-direct requisite of a lawfare per say.
Impacts of
digital lawfare & criticisms
India, if chooses to move ahead with
digital lawfare as suggested to be an effective lawfare measure should
primarily look into the domestic affair with similar agenda before invoking
international attention. This can be explained by looking inwards and
introspecting into India’s internal stance when whatever challenged and
equipped internationally occurs within the nation. The attempts to reduce
technological and economic independence on a nation with hostile relation with
India today, the Ministry of Information Technology declared the banning of
Chinese apps and access to users in India. Reasoning of the same is the
possible abuse of citizen information and threat to the national security.[15]
Now coming to India, where the arbitrary restrictions upon the citizen’s
fundamental right to freedom of speech and expression is checked upon by
banning provisions like that of Section 69 A[16] of
the IT Act, where right to information is also inculcated right, the people of
the nation are still left in the awe of the all of a sudden ban with no
reasonable transparent production of risks of data security or privacy that is
concerned or involved that could turn out to effect the citizens in the matter
concerned or whether it was a mere geo-political move.
Also, at a point where India is yet
to come about with a legislation that could counter the data leakage or misuse
via a data protection statute and privacy legislation, the mere ban of the apps
and the impact of the same in countering what is aimed remains as a lacuna.
Hence, beyond constitutional purview indirectly, India will be required to
answer in whether it has primarily addressed the domestic data handling
mechanisms before dwelling into another nation’s involvement in its affairs.
Also, the prevalent ambiguity in the Personal Data Protection Bill (Section
35), 2019 where there are multiple exemptions that could be granted to the
government in the name of threat to national integrity, security, sovereignty,
friendly relations with other states, national security raises concerns over
the democratic accountability and leviathan control in the form of surveillance
over general public. Hence, when something of this extent is levelled against a
nation like India, which is remarked as a major leap, India should also be
prepared to counter the arguments that come in this regard. The uncertainty
developed in such regulations needs to be looked upon and precisely legitimized
nevertheless the chosen digital lawfare.[17]
Conclusion
Digital lawfare has been a proven
tool of combat for every nation that have opted so and for India as well in all
plausible sense. The need for digital lawfare comes into picture only when a
nation like India is provoked by means that effectuate a counter attack
considering the possible impact on its security and constitutional backdrop.
Rather than fancy rejection of digital lawfare in a digital era where people
depend on digital platforms, software and application for one need or the
other, the same cannot be ignored or beckoned for the name’s sake of friendly
relations with adversary nation and hence all the possible measures should be
effectuated with the best efforts to counter the threat and rationalize the
domestic and international laws with deserving relevance and priority.
[1] Akhil Oka, ‘India acts tough amid
LAC faceoff, to ban 54 Chinese apps over threat to national security’, Republic
World (New Delhi, 14 Feb 2020) A1.
[2] Kiritka Suneja, ‘China accuses
India of discriminatory trade measures during a meeting at the WTO’, Economic
Times (New Delhi, 04 Oct 2020) C3.
[3] Ryan Sean, ‘Under-Mining Public Trust: The Rhetoric of
Lawfare’ (2017) 4(88) Australian Quarterly 43.
[4] Arindrajit Basu, Gurshabad Grover,
‘India needs a digital lawfare strategy to counter China’, The Diplomat
(Beijing, 08 October 2020) C2.
[5] Luban David, ‘Lawfare and legal
ethics in Guantanamo’, (2008) 6(60) Stanford Law Review 1986.
[6] Arindrajit Basu, ‘Extraterritorial
algorithmic surveillance and the incapacitation of international human rights
law’ (2019) 12(189) NUJS Law Review 190.
[7] Winckler,
H., Godement, F., & Kratz, A., ‘China: Waging ‘lawfare’ on NGOs’ (2015)
1(22) European Council on Foreign Relations 33.
[8] Ryan Sean, ‘Under-Mining Public Trust: The Rhetoric of
Lawfare’ (2017) 4(88) Australian Quarterly 43.
[9] The Steering Committee, GoI,
‘Making India 5G ready’ (Report of 5G High Level Forum 23 August 2018) <https://dot.gov.in/sites/default/files/5G%20Steering%20Committee%20report%20v%2026_0.pdf?download=1>
accessed on 15 Aug 2022.
[10] Frederick,
Kara, ‘The New War of Ideas: Counterterrorism Lessons for the Digital
Disinformation Fight’ (2019) 8 (19) Center for a New American Security 33.
[11] Burwell F G, Propp K, ‘The European Union and the Search for Digital
Sovereignty: Building ‘Fortress Europe’ or Preparing for a New World?’ (2020)
5(19) Atlantic Council 89.
[12] Brandão,
C., ‘Lawfare (or, simply, War)’ (2018) 9(32) CLACSO 35.
[13] Maxwell,
Neville, ‘Sino-India Dispute: A variant view’ (2000) 2(4) The Journal of
International Issues 150.
[14] Amit Bhandari, Blaise Fernandez,
Aashna Agarwal, ‘Chinese Investments in India’ (Gateway House Report No. 3 07
Feb 2020) <https://www.gatewayhouse.in/wp-content/uploads/2020/03/Chinese-Investments-in-India-Report_2020_Final.pdf>
accessed on 15 Aug 2022.
[15] Wallace,
D., & Visger, M, ‘Responding to the Call for a Digital Geneva Convention:
An Open Letter to Brad Smith and the Technology Community’ (2018) 6(2) Journal
of Law & Cyber Warfare 54.
[16] Ünver,
H. Ak?n, ‘Politics of Digital Surveillance, National Security and Privacy’
(2018) 1(1) Centre for Economics and Foreign Policy Studies 32.
[17]The
Transatlantic Digital Dialogue, ‘Extraterritorial Access to Data’ (2015) 3(56) German
Marshall Fund of the United States 12.