By Prabir Purkayastha
The government has recently released a Draft Indian Telecommunication Bill, 2022, for public comments. At the same time, the union government has withdrawn the Personal Data Protection Bill, which had been in the making for five years. This bill was to give a framework for the citizens’ privacy rights, based on the Supreme Court’s Puttuswamy Judgement declaring privacy as a fundamental right. However, the citizens’ rights still remain undefined. In contrast, the government’s powers over what citizens can do, see or hear are vastly increased.
Not only does the Draft Telecom Bill increase government’s powers over the citizens and service providers, but it also significantly reduces the role of the Telecom Regulatory Authority of India (TRAI) and the Telecom Disputes Settlement and Appellate Tribunal (TDSAT).
This bill seeks to replace the 1885 Indian Telegraph Act and is a continuation of the Modi government’s trend to expand the powers of the central government over its citizens. But, at least this time, it has not been rammed through the parliament the way the farm bills were, leading to a countrywide agitation of the farmers.
The intent of the Modi government seems to be to expand its policing powers and create a surveillance structure. This will force all the service providers to share their users’ data with the government. It will also enable the union government to frame rules that may make it impossible for us to use end-to-end encrypted messaging apps like Signal or Telegram. All such applications will be deemed as OTT services needing formal licenses.
The other consequence is to make it much more difficult for new or innovative services to develop using the internet. This would mean strengthening existing monopolies, allowing only big companies to provide any commercial services using the internet. The draft bill defines all such services as Over the Top (OTT) services requiring suitable licenses.
Let us look at what this bill does to the Telecom Regulatory Authority of India, TRAI. TRAI was set up to perform the role of an independent regulator of telecom services and also frame policies. Both these roles will be effectively taken over by the government’s Department of Telecom (DoT), with TRAI carrying out only what the government tells it to do. Even the setting of tariffs, one of TRAI’s functions, will be subordinated to DoT, as such powers they will exercise have to be under the Telecommunications Act.
The Puttuswamy Judgement of the Supreme Court laid down that privacy is a fundamental right and any invasion of privacy has to be legal (according to law), have a legitimate goal and proportionate. There has to be rational nexus between the objects and the means adopted to achieve them. Unfortunately, the Data Protection Act, five years in the making, is back in limbo. Though the Puttuswamy Judgement makes clear that mass surveillance of its citizens cannot be justified in law, the problem is that without a Data Protection Act, there is very little the citizen can do to exercise this right. Any of the 10 agencies of the government notified as authorised to conduct surveillance can do so without adequate checks or balances. As we shall see, the Draft Telecom Bill widens such powers by defining all our communications using the internet as a telecom service.
One of the key provisions in the Draft Telecom Bill is the use of the word over the top services, or what in telecom and data parlance, is called OTT services. This means any service, from Netflix, Hot Star, and Amazon to the small grocer who may supply their neighbourhood with groceries using an App will subsequently be considered as an OTT service requiring registration and a license.
There are two issues with calling any service that uses the internet as an OTT service. One is that we recognise only voice and data services as services in telecommunications. Either we have direct voice transmission over wires, or we have data in which everything sent over the internet is broken up into data packets, and then the packets are reassembled into voice, image or data at the other end. Using an omnibus term like over the top services goes into the function of the data and is not a telecommunication function to be regulated by the department of telecommunications.
In the physical world, a number of such services are provided, and they are regulated. For example, medical services are regulated by the ministry of health, both at the central and state levels. They can even be regulated by municipal authorities. Similarly, education, trade, etc., are all under various regulations depending on what they are. Therefore, calling all such services OTT services and bringing them under the union government’s umbrella is a massive overreach by both the union government and the department of telecom.
If we take a telecom view of the services, then we have only two major services: telephone and internet services. The physical infrastructure – copper wires, fibre optic or wireless – is not relevant to defining it as a data or a voice service. Why do we differentiate between a telephone call and an internet call when both provide voice communications? This is how the voice is communicated: directly through a wireless or a wired connection or converted from voice to data and back to voice. For telecom service providers, these are the only two services they provide. What happens inside the data packets is not the domain of telecom.
Let us look at a few examples: a doctor offering internet consultation, a small grocery store, or a restaurant would either have to register as an OTT service provider or join a major monopoly service provider, handing over a major part of their earnings to such monopolies. And no new innovative service can be introduced as it would require licensing as an OTT service, strengthening the power of existing monopolies.
There is a reason why telecom services were limited to voice and data. Otherwise, the telecom companies could hold the new service providers arising out of the internet, such as email and bulletin boards for information, news services, or those receiving such services, to ransom because of their monopoly power over the data transmission network. That is why the net neutrality regulations came into existence. If we remember, this was the battle against Facebook and its Free Basics. Facebook tied up with a few telecom operators to provide this small private internet, pretending it was the internet. This is what the internet users in India fought against and what TRAI rejected based on net neutrality principles, handing Facebook (now Meta) perhaps its biggest defeat ever.
Defining all the services that are based on data as OTT services not only leads to a regulatory overreach by the union government but also allows the internet service providers to exercise their monopoly power against any other service provider, preventing new services from emerging.
In 2015, the TRAI circulated a draft paper on OTT services. Various organisations, including Delhi Science Forum and Knowledge Commons, with which I am associated, had furnished detailed reasons against this move. We had argued that such an attempt to differentiate data services as OTT services would have a chilling effect on small and new players, significantly retarding innovation. TRAI facing such criticism did not take this any further. Interestingly, the same OTT formulations have returned again after seven years to be incorporated as law.
When any major initiative is taken by any government, a question to ask is, who benefits? Or, as the murder mysteries say, cui bono? One obvious beneficiary is the union government, which would like to expand both its licensing and surveillance powers. The other beneficiaries are the major telecom operators in the country – Reliance Jio, Airtel, and Vodafone Idea – who are also major internet service providers. They have been pushing against any competition encroaching on their monopoly, particularly voice and messaging applications. Is this a way of jettisoning net neutrality and increasing the bargaining power of major telecom service providers against those who would be designated under the new act as OTT providers?
Irrespective of who is driving this new direction for telecom, it is only going to stifle innovation in one of the fastest-growing areas in the world today. It is a huge step back from the current internet based on net neutrality principles that the Indian users and the regulatory authorities have created. Why is India, held as an exemplar of net neutrality and participative policy-making, introducing such regressive policies again? Love for surveillance or love for the private telecom monopolies? (IPA Service)