The issue of whether to regulate communication apps, known as over-the-top (OTT) players, isn’t likely to be resolved any time soon given that the matter is far more complicated than earlier thought, officials said.
The telecom regulator has realised that it is no longer a financial arbitrage issue between telcos and apps, but one of security and lawful interception. In addition, there is an absence of a global example of similar rules to govern apps and the regulator needs to factor in clauses in the upcoming data protection law and social intermediary guidelines before making any recommendations.
“It started as an economic issue, but then as the consultation went along, the issue changed and it’s become more of a security and lawful enforcement matter,” a senior official at the Telecom Regulatory Authority of India told ET.
While telcos are required to allow lawful interception by security agencies, communication apps are not bound by similar rules.
Telcos want regularity parity with such apps, saying they were free network riders that eroded their revenue by offering similar services for free without having to pay levies such as licence fees. App companies oppose any move to be regulated, saying they are already governed under the IT Act and such a move would stifle innovation.
Following demands from telecom operators, the watchdog came out with a consultation paper on the regulation of communication OTT players such as Facebook, WhatsApp, Viber and Google in March 2015.
Trai started another consultation in November 2018 on whether regulating communication apps was necessary, but the regulator is yet to come out with its recommendations. Officials said Trai is principally of the view that regulatory imbalances between telcos and communication apps should be addressed. But the task is complicated.
“We figured out that OTT providers such as WhatsApp’s architecture by design is not meant for interception and is end-to-end encrypted…(the) intermediary does not participate in the encryption process,” a second official said.
WhatsApp, with over 400 million users, is the largest communication app operating in India. Trai has found that no country has done anything to regulate communication apps.
“Australia has made a law that says intermediaries will have to provide for encryption… but that’s only a law, they have not enforced the law deliberately because of issues around interception of messages on WhatsApp,” said the official.
Adding to the complexity of the issue is the upcoming data protection law and social intermediary guidelines, the officials said.
“Who are intermediaries, what are their liabilities? US laws talk about a safe harbour, that the intermediary is not liable. But here, intermediaries may be made liable under new guidelines, but one would have to understand it,” the official said.
The government wants WhatsApp to allow traceability of messages that lead to criminal activities, but the US social media major has pushed back, saying it can’t do so due to its privacy rules.
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