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Has the govt worked out a way to regulate OTT communication apps?

The Draft Indian Telecommunication Bill 2022, when it was released for public consultation in September, had raised fears that its scope went beyond telecom issues and pointed to the return of the Licence Raj under the Department of Telecommunications.

Much of the controversy is around the broad definition of ‘telecommunication service’. It included, among others, email, broadcasting services, video and data communication services, OTT communication services such as WhatsApp and interpersonal communication services. The definition of ‘message’ is broad too.

An industry insider had said that e-commerce, banking, gaming and social media apps as well as any platform where there is two-way messaging will come under the definition, requiring a licence.

Telcos have argued that OTT communication services are usurping their SMS and voice call businesses and, therefore, should be licensed just as they are.

The definition was amended after telecom service providers such as Airtel and Reliance Jio said that they require a level-playing field as OTT communications and satellite-based services offer audio and video calls and messaging without paying for licence or spectrum.

OTT players meanwhile said they use telecom networks to offer value added services for which telcos get paid by customers, based on the latter’s data utilisation. Plus, they are already regulated under the IT Act as intermediaries.

The Bill, in its current form, empowers the government to direct service providers to intercept, detain and disclose messages sent through these channels in the case of an emergency or in the interest of public safety.

This can undermine the security benefits of end-to-end encryption because the government will have the power to intercept messages, compromising user privacy.

However, telecom minister Ashwini Vaishnaw has recently said that the government will only introduce “light-touch regulations” for OTT communication services like WhatsApp, Signal and Telegram, keeping consumer interest and cyber fraud issues in mind.

The Telecom Regulatory Authority of India was also not in favour of regulation for OTT service providers, sources had told Business Standard. The telecom regulator had shot down proposal for OTT regulation in 2020 as well.

A report in a financial daily on Monday said, OTT apps may not require licences to operate in India but will have to step up user protection. A consensus that user protection must be prioritised has reportedly emerged from the discussions between the government and the stakeholders on the draft telecom bill.

The report said that various stakeholders will continue to discuss the “light-touch regulations” for the OTT communication platforms.

Salman Waris, Managing Partner, TechLegis Advocates & Solicitors says, government is not putting regulation on encryption on the backburner. OTT communication players provide backdoor access to govt. Govt may update interception regulations in future

Telecom Minister Ashwini Vaishnaw has said the new telecom bill is expected to be in place in the next 6-10 months but the government is not in a hurry.

While OTT communication players may have reason to rejoice, questions around privacy and how far the government can go in the name of security remain. In future, regulations may have to revisit these aspects of the digital world. Business Standard

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