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TRAI’S MOVE TO REGULATE OTT MAY THREATEN PRIVACY, END ENCRYPTION: EXPERTS

OTT services are currently regulated under the IT Act, which will soon be
replaced by the proposed Digital India Bill.

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 * Suraksha P ,
 * ETtech

 * Updated On Jul 13, 2023 at 01:29 PM IST
   


If OTT services are regulated by Trai and require a telecom licence, they may be
subject to telecom interception requirements such as to connect to the
centralised monitoring system, which means any calls could be monitored at any
point by security agenciesOver-the-top (OTT) communication services like
Whatsapp, Signal or Telegram could be "over regulated" with the threat of
encryption being compromised, said technology policy experts after the Telecom
Regulatory Authority of India (Trai) proposed to regulate such services in its
consultation paper released last week.

OTT services are currently regulated under the IT Act, which will soon be
replaced by the proposed Digital India Bill.


Advt


Experts said currently the government is required to give a notice under Section
69(a) of the IT Act to track calls and if OTT services are regulated by Trai, it
will make it much easier for the government to intercept calls.

The firms may also have to do away with end-to-end encryption, which will be a
risk to user privacy and threaten operations of firms like Whatsapp in India,
experts said.

“OTTs are currently regulated under the IT Act and adding another regulator in
the mix is likely to complicate issues. India will probably have to consider a
collaborative digital regulation framework like the one that the UK has set up,”
said Rohit Kumar, founding partner of public policy research firm The Quantum
Hub.



Last Friday, Trai had issued a consultation paper on the regulatory mechanism
for OTT communication services as well as their selective banning on national
security grounds.

Prateek Waghre, policy director, Internet Freedom Foundation, said the existence
of such a consultation is directionally concerning.

“It seeks to operationalise greater restrictions on communication between
citizens—whether in the form 'selective banning' or interception, likely with
grave consequences,” he said.

Nikhil Narendran, partner at the TMT practice of law firm Trilegal, said, "Once
a licensing regime is brought in, for OTT services, the whole architecture of
these services may require change".


Advt


If OTT services are regulated by Trai and require a telecom licence, they may be
subject to telecom interception requirements such as to connect to the
centralised monitoring system, which means any calls could be monitored at any
point by security agencies, he said. End-to-end encryption would have to be
broken for this, he added.

Telecom carriers have called the regulator’s discussion paper on regulating OTT
players such as WhatsApp, Telegram and Signal, and on selective banning of apps
during instances of civil unrest a progressive step and a backing of their
concerns, ET reported last week.

Amrita Choudhury, president, Cyber Café Association of India, said, licensing
OTTs will not address telco issues and that there are other viable options to
support the challenges faced by the telecom industry such as rationalising
spectrum charges, etc.

Kazim Rizvi, founder of public policy think tank The Dialogue, recalled that in
2020, Trai had recommended to the department of telecommunication (DoT) that the
security architecture of end-to-end encrypted services should not be tinkered
with as that would compromise the privacy, safety and security of citizens.

Further, Section 69 of the IT Act already prescribes powers for monitoring and
decryption of information, he said. Procedural and Safeguards for Interception
and Decryption Rules, 2009 formulated under this provision, at least have some
procedural safeguards for such orders, he explained.

Indicating a compromise of end-to-end encryption like national security, public
order etc. may not satisfy the proportionality and necessity test stated by the
Supreme Court in the first Puttaswamy judgement, he said. Given these reasons,
it is important that OTT communication services are kept outside the
jurisdiction of DoT and Trai, Rizvi said.

Waghre explained that the current approach seeks to resurrect a 'licence raj'
and compromise citizen's ability to communicate privately instead of being
progressive and protecting the rights of individuals in India.

“Such an approach also fundamentally misunderstands one of the core tenets of
communications security—that you cannot have selective compromises. Once a
system that intentionally introduces a vulnerability in end-to-end
encryption/private communications is created, it can be exploited by anyone,” he
pointed out.


   
 * By Suraksha P ,
 * ETtech

   
 * Published On Jul 13, 2023 at 01:29 PM IST
   


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