India’s top telecom operators, including Reliance Jio Infocomm, and startups such as Paytm and ShareChat favour the lawful interception of messages on internet applications and services, saying it is critical for investigating criminal, anti-national and anti-social activities.
Responding to the telecom regulator’s consultation paper on regulating over-the-top (OTT) service providers such as WhatsApp, Jio and the Cellular Operators Association of India also said OTT service providers should be licensed, just as they are.
“Lawful interception of every message is a legal and critical means provided to the security agencies for investigation of criminal, anti-national and anti-social activities,” Jio said in its submission. “This, along with data privacy, is a licence requirement for TSPs (telecom service providers) and a similar requirement should be mandated for the OTT communication services providers.”
In contrast, industry associations Nasscom and the Internet and Mobile Association of India (IAMAI) have argued that there should not be additional regulation for OTTs since there are enough provisions under existing laws such as the IT Act.
In its submission, Times Internet, a digital products company with stakes in entities including OTTs, said attempts to draw up a regulatory classification, license OTT services or mandate requirements uniformly on them can unreasonably distort or restrict the market.
“OTTs and TSPs operate in fundamentally distinct and separate markets, and attempts to compare their services as similar or substitutable are misguided attempts to draw equivalencies where they do not exist,” it said.
It added that TSPs benefit from the demand for data that OTT services drive and TSPs should be prevented from any opportunities to encourage ‘double dipping’ into the OTT space, particularly if network neutrality principles are upheld. Times Internet is the digital arm of the company that publishes The Economic Times.
The Telecom Regulatory Authority of India released the discussion paper ‘Regulatory Framework for Over The Top Communications Services’ in November, its second since 2015, to debate whether a regulatory framework was required to govern these entities.
Jio added that OTT service providers should give full data access, including decryption keys, to Indian law enforcement authorities and collect and store all user information locally.
According to ShareChat, one of the largest Indian messaging services, domestic entities are often better suited to understand the nuanced needs of the next billion users in India.
“The alternative lies in the dominance of global and regional multi-billion dollar incumbents with deep pockets to avoid to meet any compliance costs,” ShareChat said.
IAMAI, which counts Facebook and Google as its members, said that it would be detrimental to license communication applications and internet platforms.
“Any attempt to regulate internet companies will result in fragmented regulatory approach towards internet as the sector is regulated by the IT Act in the country,” it said.
IAMAI added the Telegraph Act permits lawful interception of all data traffic by licensed TSPs and ISPs. Data traffic is already intercepted at international landing stations and does not require additional intervention from the regulator. It said regulation would increase costs and lead to uncertainty, a stance also advocated by software lobby group Nasscom.
“As far as consumer protection is concerned, we already have safeguards under the IT Act and other legislation and any more regulation will increase the entry barrier for new guys and the cost of compliance for existing ones,” Ashish Aggarwal, head of public advocacy at Nasscom, told ET.
Digital payment giant Paytm said services provided by OTTs such as messaging may be regarded as the same or similar to TSPs.
“There have been instances in the past wherein an OTT provider has failed in monitoring fake news spreading through their platform resulting in deaths of our fellow Indians. In such situations, it becomes necessary that OTT providers also be subject to appropriate regulations such as those applicable to TSPs,” Paytm said.
It said Indian authorities must have absolute and unrestricted access to data for national security and supervisory and regulatory control.
The Reserve Bank of India mandates all payment data of India users to be stored and processed locally. India’s draft data protection bill proposes that all critical personal data be stored locally.
COAI, which represents telcos Bharti Airtel, Vodafone Idea and Jio, said it is of the view that the “Same Service Same Rule” principle needs to be adopted between the TSPs and OTT service providers. No exception should be made for any service provider, including OTTs, with regard to national security and privacy norms.
Vodafone Idea said the new OTT framework should be light touch and should encompass all communication services while adopting a technology neutral approach.
“Any commercial and regulatory restrictions presently applicable on TSPs that restrict them from competing on services which are being offered by OTT players should immediately be addressed – either by removal of such barriers or by applying the same in an even-handed manner applicable to both TSPs and OTTs, ” it said.
TRAI is inviting counter-comments on the paper till January 21.
The government has been asking application providers such as WhatsApp to trace the origin of alleged fake messages that lead to law-and-order situations in the country. The Facebook-owned company has so far refused to break its end-to-end encryption. In December, Australia passed a law to empower the police to access messages on encrypted apps such as WhatsApp.
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