Laws: Experts report regulatory overlap as government redesigns telecom and IT laws

The trade union government must clearly define the jurisdiction of a series of new laws being drawn up to oversee India’s vibrant telecommunications and information technology sectors in order to avoid regulatory discord in the future, several policy experts told ET. informatics.

They pointed to a potential “overlap” between certain provisions of the newly announced Indian Telecommunications Bill, 2022 and the current IT Act, as well as the revamped Information Technology Act (The Digital India Act) and the upcoming Data Protection Act. personal data (PDP) as a matter of “concern”.

The new telecommunications policy, released on Wednesday, has included over-the-top (OTT) communications services such as WhatsApp, Telegram and Signal in its scope, although the proposed IT regulations should also include provisions that will govern these companies, they noted.

As the government is redrafting the telecommunications and IT laws, it must decide which of the regulators, whether it is the Telecom Regulatory Authority of India (TRAI) or the proposed Data Protection Authority (DPA) under the draft PDP law, have oversight of these companies, the people quoted above said.

Currently, apps like WhatsApp are regulated by the IT Act, while the provisions of the IT rules, notified last year, have also increased the scrutiny of major social media companies like WhatsApp, including provisions related to message traceability.

Meanwhile, the newly published draft telecommunications policy has also expanded the definition of “telecommunications services” to include OTT communications services, which means these companies will also be governed by the new law.

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Clause 24 (2) (a) of the Telecommunications Bill also states that information transmitted and received via telecommunications services may be intercepted by an authorized government official “in the interest of sovereignty, integrity or security. of India, friendly relations with foreign countries, public order or the prevention of incitement to a crime ”.

Some industry insiders have noted that this provision could open up the debate on cryptographic breach. Meta-owned WhatsApp, which claims to be end-to-end encrypted, previously took the government to court for requiring it to identify the first sender of messages.

WhatsApp did not respond to ET’s questions about it.

“OTT services are already required to comply with IT laws that do not take into account modern technologies and intentions for privacy, especially end-to-end encryption. Extending telecommunications laws to paint them the same way as wiretapping calls will create an additional unnecessary headache that gets nothing extra for the country or its law enforcement, “said Prasanto K Roy, expert on IT policy.

“And OTTs face other upcoming regulations, including data protection and the Digital India Act. Even though the existing 1885 act was about half a century overdue for revision, this duplication is unnecessary,” he added. .

Others, like Salman Waris, partner of the law firm TechLegis, were of the opinion that “the government is trying to put in place multiple mechanisms to exercise control over the Internet through different regulations, (it) wants to have the ability to be able to” monitors and analyzes “content and communication on OTT players in” real time “rather than conducting an autopsy afterwards”.

Pointing to “substantial overlap (between) the proposed draft telecommunications bill, existing provisions of the IT Act and IT rules, and the now withdrawn personal data protection bill,” Waris said it “will only increase. the regulatory problems of the supplier service “.

Noting that the “end-to-end encryption offered by many OTT players has been a bone of contention. While middleman rules require apps to provide information on demand to law enforcement, apps, citing encryption, the express impossibility “, he added.

Split views

To be sure, telecom operators have supported regulation of OTT operators offering similar communications services. While telecom companies are subject to various licensing and regulatory provisions, OTT players operate virtually unregulated, preventing a level playing field, according to Waris.

Aman Taneja, lead, Emerging Technologies, Ikigai Law, said: “Both regulations must be designed in such a way that there is no mixing of flows. In particular, on the aspect of traceability and violation of end-to-end encryption, there are already cases that challenge these pending provisions, so judicial clarity on these aspects becomes even more important “.

Believing it is possible for more than one regulator to regulate a space, Taneja said it is, however, important to have clarity on what aspects each regulator oversees to avoid any inconsistency that is difficult for companies to navigate. For example, “while the proposed telecommunications law examines licensing requirements and the resulting consequences, the Digital India Bill, which is still awaited, may be limited to content regulation and conditions for an intermediary safe harbor”, he has declared.

Elsewhere, lawyers have pointed to the possibility that the new “Digital India Bill reported to soon replace the Information Technology Act, 2000, may or may not include provisions to regulate OTTs altogether, including the content services aspect of platforms.” OCT “.

Harsh Walia, Partner, Khaitan & Co, stated that, under the new telecommunications bill, the definition of “telecommunications services” includes, inter alia, only OTT communication services and therefore does not give the impression of incorporating OTT, as a whole, within its scope. ”

However, since “a potential overlap of powers that could arise in the future cannot be ruled out, it is prudent to expect the government to enact these bills after extensive caution,” he added.