Metadata by TLF: Issue 14
Welcome to our fortnightly newsletter, where our reporters Kruttika Lokesh and Dhananjay Dhonchak put together handpicked stories from the world of tech law! You can find other issues here, and you can subscribe to Metadata by TLF here.
India bans 59 Chinese Apps including Tik-Tok
The Ministry of Electronics and Information Technology announced in a press release on 29th June that it had invoked its powers under section 69A of the Information Technology Act to ban 59 Chinese applications. The Indian government cited ‘raging concerns on aspects relating to data security and safeguarding the privacy of 130 crore Indians’ as reasons behind the ban. The move comes after a border skirmish with China resulted in the deaths of 20 Indian soldiers. Regardless of the cybersecurity concerns cited in the press release, speculation remains rife over whether the ban was a retaliatory measure in light of the worsening geopolitical situation between India and China. India is a huge market for Chinese apps, particularly for the video-sharing platform Tik-Tok which had previously been banned in February 2019 for encouraging the spread of pornography and ‘cultural degradation’. The ban was ultimately lifted after assurances by Tik-Tok that it had the tools to censor explicit content. The current ban has been called a purely political decision and criticised for its procedural impropriety and its excessive restriction on dissemination of online content.
Tech Law Forum, Representation to MEITY on the Chinese App Ban (July 8, 2020).
Anupriya Dhonchak & Nikhil Purohit, “Is India’s ban on Tiktok and 58 other Chinese apps consistent with the provisions of IT Act?”, Scroll, (July 1, 2020).
Staff, “India Bans 59 Chinese Apps, Including TikTok, UC Browser, SHAREit”, The Quint, (June 30, 2020).
Rajesh Roy and Shan Li, “India Bans TikTok, Dozens of Other Chinese Apps After Border Clash”, Wall Street Journal, (June 30, 2020).
Tom Simonite, “Smartphone Apps Are Now a Weapon in International Disputes”, Wired, (June 30, 2020).
Aditi Agrawal, “How does a Section 69A blocking order come into existence?”, Medianama, (June 30, 2020).
Apar Gupta, “How not to tame the digital dragon”, The Hindu, (July 2, 2020).
European Commission opens up antitrust investigations into Apple
The European Commission, on 16th June 2020 started a formal antitrust investigation to assess whether Apple’s App Store rules violate EU competition rules. The commission also opened another investigation to determine whether Apple’s conduct in connection with Apple Pay violated EU competition rules. Apple imposes two restrictions on companies that wish to distribute their apps through the App Store. Firstly, it makes the use of its own proprietary in-app purchase system “IAP” mandatory for the distribution of paid digital content. It then charges a 30% tax on any subscription fee through IAP. Secondly, it does not allow the app developers to inform users of alternative purchasing possibilities outside of the app. Its rules allow content such as music purchased elsewhere to be consumed on the app itself but does not allow the developer to inform users about such purchasing possibilities. It is alleged that such arbitrary restrictions and high percentage cut fall foul of provisions of the Treaty on the Functioning of the European Union (TFEU) which prohibit anticompetitive agreements.
Press Release, “Antitrust: Commission opens investigations into Apple's App Store rules”, European Commission (June 16, 2020).
Press Release, “Antitrust: Commission opens investigation into Apple practices regarding Apple Pay”, European Commission (June 16, 2020).
Daniel Michaels & Sam Schechner, “Apple Faces Two EU Antitrust Probes Over Apps”, Wall Street Journal (June 16, 2020).
Mohini Parghi, “App Stores and Abuse of Dominance: The Case Against Apple (Part I)”, Tech Law Forum NALSAR (July 8, 2019).
Mohini Parghi, “App Stores and Abuse of Dominance: The Case Against Apple (Part II)”, Tech Law Forum NALSAR (July 8, 2019).
David Pierce, “A new email startup says Apple’s shaking it down for a cut of its subscriptions”, Protocol (June 16, 2020).
New York bill to outlaw geofence warrants gains support amid calls for police reform
In April of 2020, lawmakers in New York had introduced the “Reverse Location Search Prohibition Act” which seeks to prohibit geofence warrants and voluntary reverse location requests. A geofence warrant demands private user information stored with tech companies, not of specific suspects of a crime but from any electronic devices that were close to the geographic area that forms the scene of the crime. Often, in the absence of court orders, law enforcement agencies request information from tech companies like Google which have an opt-in location history feature. The bill was originally introduced over fears that governmental measures to tackle the coronavirus crisis could unfairly impinge upon citizens’ right to privacy. It has gained momentum in the past few weeks as calls for police reform have increased in the wake of the killing of George Floyd. Along with privacy and civil rights advocates, Google and Facebook have publicly supported the outlawing of such warrants which have in the past led to innocent people getting arrested by the police.
Issie Lapowsky, “New York lawmakers want to outlaw geofence warrants as protests grow”, Protocol (June 16, 2020).
Liz Brody, “Google’s Geofence Warrants Face a Major Legal Challenge”, OneZero (June 11, 2020).
Nicolette J. Zulli, “Scaling the (Geo)Fence: New York Lawmakers Push to Outlaw Geofence Warrants amid Ongoing National Debate for Police Reform”, Lexology (June 19, 2020).
Emily Glazer & Patience Haggin, “Political Groups Track Protesters’ Cellphone Data”, Wall Street Journal (June 14, 2020).
Nathaniel Sobel, “Do Geofence Warrants Violate the Fourth Amendment?”, Lawfare Blog (February 24, 2020).
Systematic strengthening of antitrust laws initiated in Germany
In a move to curb the anti-competitive behaviour displayed by Facebook in Germany, the Federal Cartel Office ordered the social media giant to stop generating super profiles on users. Facebook was combining users’ personal data generated from its own services and from the internet at large, through plug-ins and tracking pixels. This was done without obtaining the prior consent of the user, as Facebook’s standard zero-opt out terms and conditions combined with its dominant and growing market position implicitly permitted it to do so. This pervasive people-profiling was deemed to be an abuse of power and dominant position, leading to a rethink on how to approach the power wielded by data companies.
AP, “Facebook loses antitrust case in Germany”, The Hindu (June 24, 2020).
Corrine Reichert, “Apple, Google, Amazon and Facebook CEOs to appear at antitrust hearing on July 27”, CNet (July 6, 2020).
Shruti Srivastava, “Jio-Facebook Deal Under Antitrust Review by Competition Commission of India”, NDTV (June 17, 2020).