Proposed Telecom Law Undermines Free Speech, Burdens OTT Apps: Internet Body

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OTT communication apps ought to be regulated under a separate framework altogether: Paine

A licensing regime could impose ‘unwarranted governmental oversight’ on the operations of OTT communications apps, says internet body

The new telecom Bill was released for the general public on Sep 21 and has been panned vociferously by internet activists for regulatory overreach

Industry body Asia Internet Coalition (AIC) has said that the government’s bid to regulate over-the-top (OTT) communication apps could potentially undermine free speech.

“This is likely to affect the existing nature of OTT services offered to the general public and may even lead to a scenario where users believe that they are unable to openly and freely use OTT services as a medium of expression – and thus undermine their fundamental right to free speech and expression,” said AIC managing director Jeff Paine.

This was part of a letter shot off by Paine to Minister of Communications Ashwini Vaishnaw over the recently released draft Telecommunications Bill. 

The top executive also called for separate laws for the regulation of OTT communication apps, saying that it was not similar to telecommunication services and ought to be regulated under a separate framework altogether.

Training guns at the government, the letter also said that subjecting OTT service providers to a licensing regime could impose ‘unwarranted governmental oversight’ with regard to their operations. 

Terming the prospective Bill contrary to the vision of a safe and open internet for all, Paine added, “We strongly recommend that OTT service providers be kept out of the ambit of the potential licensing framework as licence and entry fee burdens on OTT service providers are likely to act as economic disincentives and result in services becoming more expensive for users.”

Besides, Asia Internet Coalition also submitted a broad set of comments on the recently released Telecommunication Bill. It is, however, pertinent to note that the internet body counts some of the biggest tech players as its members, including Google, Meta, Twitter and LinkedIn.

New Telecom Bill Spooks Critics

One of the major takeaways of the report was that AIC sought to keep OTT apps out of the ambit of the Bill. Making its point, the industry body said that compliance requirements, as part of the proposed law, could hurt local businesses, including startups. 

It also claimed that the move could result in fewer OTT service providers in the country and could potentially lead to ‘slowdown in research, development and innovation.’ Subsequently, the AIC said that the situation could also lead to job losses and lesser investment trickling into the sector. 

The comments also noted that certain terms in the Bill had ‘overlapping meanings:’ A case in point appears to be the term ‘internet-based communication services’ which, AIC, claims could include any sort of communication service happening over the internet, including OTT apps. 

The report also rued the lack of definite meaning for certain terms. It also added that the creation of different regulations for communication and non-communication apps could lead to an ‘uneven playing field’ between services using the similar medium 

AIC was, essentially, highlighting the absence of any specific method to differentiate between these two apps in the text of the Bill (the comments highlighted the confusion around terms OTT communication services and other OTT services such as ride-hailing apps).

Reiterating its another major request, the coalition called on the government to do away with the proposed provision that seeks dilution of encryption on OTT communication apps such as WhatsApp, Signal and Telegram. 

“These provisions essentially strip away the user’s right to stay anonymous and puts an obligation on service providers to identify, with complete assurity, every user. Such a broad and excessive requirement, in the absence of a data protection law, fails to prioritise user safety and security, and should accordingly be removed,” added AIC. 

Among the issues highlighted by the Asia Internet Coalition included:

  • Absence of a definite transition period in the text of the Bill, including specific timelines for different compliance with certain norms
  • Changing the definition of ‘messages’ and exclusion of in-app notifications and messages provided by businesses to users within the app
  • Revisiting and restricting the definition of ‘telecommunications’ owing to its broad coverage and lack of distinction between telecom infrastructure services and internet infrastructure services
  • Omitting certain terms such as ‘internet based communication services’ and ‘OTT communication services’ from the text of the Bill
  • Restricting Centre’s powers to notify any other services as ‘telecommunication services’ in the future without prior discussions with stakeholders
  • Limiting the scope of the definition of a user and curbing user verification

The internet body also questioned the additional set of provisions in the new Telecom Bill that specify interception and monitoring provisions applicable to the OTT service providers. It also recommended the government to institute additional safeguards to prevent arbitrary internet suspensions.

The draft telecom bill was released for the general public on September 21. Since then, the bill has elicited strong responses from civil society and critics alike. Organisations including SLFC India, Access Now and India Internet Foundation have rallied against the proposed law, calling it ‘yet another attack on end-to-end encryption, and people’s fundamental rights and freedoms.’

With the Bill, the government plans to revamp the colonial-era Indian Telegraph Act. But, concerns continue to mount over provisions that call for breaking encryption, surveillance and overarching powers of the new Bill.

Currently, it is open for public consultation and comments from relevant stakeholders till November 10. Afterwards, the government could speed up plans to present the Bill in both houses of the Parliament. While communication minister Vaishnaw had previously said that the Bill could be implemented as soon as six to ten months, it remains to be seen if the government heeds the demands of critics. 

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