IT laws: Experts point to regulatory overlap as government redesigns telecommunications and IT laws

The Union government must clearly define the jurisdiction of a series of new laws that are being drafted to oversee the dynamic telecommunications and information technology sectors in India in order to avoid regulatory discord at the future, several cyberpolitics experts told ET.

They pointed to a potential “overlap” between certain provisions of the recently announced Indian Telecommunications Bill 2022 and the existing IT Act as well as the revamped Information Technology Act (the Digital India Act) and the upcoming Personal Data Protection Bill (PDP). as a matter of “concern”.

The new telecommunications policy – released on Wednesday – included on top (OTT) communication services such as WhatsApp, Telegram and Signal within its scope, even as the proposed IT regulations are also expected to include provisions that will govern these companies, they noted.

As the government prepares both telecommunications and IT laws again he must decide which of the regulators – whether the Telecom Regulatory Authority of India (TRAI) or the project Data Protection Authority (DPA) under the PDP Bill – will have oversight of these companies, the people quoted above said.

Currently, apps like WhatsApp are regulated by the IT Law, while provisions of the IT Rules, notified last year, have also strengthened oversight of major social media companies such as WhatsApp, including traceability provisions. messages.

Meanwhile, the recently released draft telecommunications policy also expanded the definition of “telecommunications services” to include OTT communication services, meaning these companies will also be regulated under the new law.

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Section 24(2)(a) of the Telecommunications Bill also provides that information transmitted and received over telecommunications services could be intercepted by an authorized government official “in the interest of sovereignty, ‘integrity or security of India, friendly relations with foreign states, public order or prevention of incitement to crime’.

Some industry experts have noted that this provision could open up the debate about breaking encryption. Meta-owned WhatsApp, which claims to be end-to-end encrypted, has already taken the government to court for mandating it to identify the first sender of the messages.

WhatsApp did not respond to ET’s questions about this.

“OTT services are already forced to comply with IT laws that disregard modern technology and intent of privacy, especially end-to-end encryption. Extension telecommunications laws also painting them with the same brush as phone calls for interception will create an additional unnecessary headache that brings nothing more to the country or its law enforcement,” said Prasanto K Roy, cyber policy expert .

“And OTTs face other regulations to come, including Data Protection and the Digital India Act. Even though the existing Act of 1885 was about half a century overdue for an overhaul, this duplication is unnecessary,” he added.

Others, like Salman Waris, a partner at law firm TechLegis, felt that “the government is trying to put in place multiple mechanisms to exercise control over the internet through different regulations, (it) wants to have the ability to be able to ‘control and analyze” content and communication about OTT players in “real time” rather than doing a post-mortem afterwards. »

Pointing to “substantial overlap (between) the Telecommunications Bill, existing provisions of the IT Act and IT Rules, and the now withdrawn Personal Data Protection Bill”, Waris said it ” will only add to the regulatory problems of service providers.”

Noting that “end-to-end encryption offered by many OTT players has been a bone of contention. While intermediate rules require apps to provide information on demand to law enforcement, apps, citing encryption , express their inability,” he added.

Split views

Certainly, telecommunications operators have argued for regulation of OTT players who offer similar communication services. While telecom companies are subject to various licensing and regulatory provisions, OTT players operate virtually unregulated, preventing a level playing field, according to Waris.

Aman Taneja, Head of Emerging Technologies, Ikigai Law, said, “Both regulations need to be crafted in such a way that there is no mixing of streams. Specifically, on the aspect of traceability and breaking end-to-end encryption, there are already cases challenging these provisions pending, so judicial clarity on these aspects becomes all the more important.

Believing that it is possible for more than one regulator to regulate a space, Taneja said it is however important to clarify which aspects each regulator oversees to avoid any inconsistencies that are difficult for businesses to navigate. For example, “While the Telecommunications Bill examines licensing requirements and their implications, the still-awaited Digital India Bill may be limited to content regulation and terms of the intermediate safe harbor,” he said.

Elsewhere, lawyers have pointed to the possibility that the new “Digital India Bill” which is expected to soon replace the Information Technology Act 2000, may or may not contain provisions governing the whole of OTT, including the aspect of content services by OTT platforms”.

Harsh Walia, Partner, Khaitan & Co, said that under the new Telecommunications Bill, the definition of “telecommunications services” includes, among others, OTT communication services only and therefore does not give the to incorporate OTT, as a whole, into its reach.”

However, as one “cannot rule out a possible overlapping of powers that may arise in the future, it is prudent to expect the government to enact these bills after great caution,” he said. added.