You can’t ban a whisper: GitHub removes BitChat after government order, Section 79 powers come under scrutiny

On July 23, GoI ordered Microsoft subsidiary GitHub to take down its Bluetooth-based messaging app, BitChat. Issued under Section 79(3)(b) of the IT Act, the order from home ministry's cybercrime arm, Indian Cybercrime Coordination Centre (I4C), arrived even as an internet shutdown tried to prevent people from communicating during the Cockroach Janta Party (CJP) protests that had spread through the heart of Delhi.

This order is illegal, and it should worry anyone who builds, or uses, technology in India.

BitChat has broken no law. It is closer to 'Chinese whispers', the act of passing a message from one person to another, in a limited area. Private conversations are not a crime, and the fact that a conspiracy can be whispered has never been a reason to ban whispering.


The order's central charge is that the app is 'capable' of being misused. If the mere capacity for misuse is enough, then every piece of software ever written sits at the mercy of what a babu or neta can imagine being done with it. Code is neutral.

Section 79 is a 'safe harbour' provision. It shields a platform like GitHub from liability for what its users post - on the condition that the platform takes down information used to commit an unlawful act once it has been notified. The clause doesn't give the government the power to ban an app it simply does not want people to have.

There is no unlawful act on record mentioned in the order, only the assessment that it can be used for one. Microsoft Word can be used to draft a conspiracy anonymously as well. Hopefully, that is not next in the list.

The order treats absence of surveillance over BitChat as though it were the violation. It damns BitChat for no mandatory registration, no phone number verification, and no central log of who said what. No law in India requires a messaging app to collect any of this. There is no ban on anonymous coordination, no legal duty to build surveillance into every app, and, thus, its absence cannot be the basis for banning the app.

Many apps, including Signal and WhatsApp, are end-to-end encrypted so that no one is logging our conversations. A demand that people speak only where the state can hear them violates our fundamental right to privacy.

This blocking order is not proportionate. There is legitimate, lawful speech on any messenger - in college, at festivals and even at protests. We share messages, our location, coordinate time to congregating, among other things. A government that cannot see that speech, has not shown that any of it is illegal, should not be able to ban it.

Directing GitHub to remove the app points towards a deeper problem. GitHub, which hasn't done anything illegal, has complied because it doesn't want to face GoI's ire. Microsoft has a large business to run in India. The reason that GoI doesn't want decentralised services like BitChat to remain is exactly why it wants platforms like GitHub - and, indeed, Facebook and YouTube - to flourish: it's easier to threaten a large centralised company.

IT Rules incorporate criminal liability for the compliance officer in these companies, forcing them to blindly execute the government's will. GoI's 'infrastructure of censorship' via IT Rules allows it to censor speech through these platforms.

The internet shutdown around these protests felt more like a prelude to a crackdown than a precautionary measure. This was predictable - when the network goes dark, so does accountability, and only transparency can hold the government to account.

The case has reached the courts because there is video evidence that has escaped the internet blackout. Over the past few years, our courts have, on many occasions, failed to keep abuse of our fundamental right to speech in check, by either dismissing petitions or allowing them, but not listing them.

Allowing the Sahyog Portal - ostensibly a platform to allow citizens to lodge complaints, track status, submit reminders and provide feedback through a unified online system - to continue was a green light to the state to keep expanding its censorship powers. A government can act as a law unto itself only for as long as the courts let it.