There is a principle in law which states that you cannot do indirectly that which you are prohibited from doing directly. The government, it appears, is exempt from its application
It is not immediately apparent to the lay person, but the design of our telecom regulatory framework is different from other sectors. Among the many reason/s/ for this distinction is the pre-independence legislation that governs the sector — a law that was once used to regulate telegraphs but which has, over the years, been force-fitted to apply to modern technology.
The Indian Telegraph Act of 1885 confers on the government the exclusive privilege of establishing, maintaining and working telegraphs in the country. Even though the dictionary meaning of the term “telegraph" signifies a technology that transmits messages over electric wires, many years of judicial precedent have extended the meaning of the term to cover all kinds of modern technologies. As a result, anyone who operates anything even remotely approaching a telecom service can only do so under a licence—and the regulator is constantly attempting to broaden the scope of its authority to try and bring more business models within its ambit.
Because of the way the statute has been framed, the government regulates entities that operate the infrastructure of communication—those who “establish, maintain and work" the “telegraphs". It does not regulate the rest of us who merely use the telecom infrastructure to communicate. This is why we can freely procure telephones and internet communication devices, while the service providers who connect our phones to each other have to first obtain a licence from the government.
This is the basic philosophy behind the regulation of the telecom sector in India—a principle that applies to businesses just as it does to people. It is why e-commerce and fintech businesses, whose entire model calls for the delivery of goods and services over the internet, can function without restriction in India and why services such as Skype and WhatsApp don’t need a licence to operate.
When you compare the features of these last two applications with those of the plain old telecom service, the similarities are impossible to ignore. Both Skype and WhatsApp facilitate voice- and text-based communication between subscribers in much the same way that traditional telecom companies do. The difference lies not in the nature of the service, but in the manner in which it is provided. While access service providers have established and maintain physical infrastructure that we use to call and SMS each other, over-the-top services deliver the same service using the public internet.
For some time now, the government has been itching to extend the edges of its authority—to find some way to regulate over-the-top-services. However, given the manner in which the Indian Telegraph Act is currently structured, it is hard to see how an entity that does not establish, maintain and work a telegraph could fall within the regulatory purview of the department of telecommunications. But this does not seem to be holding the government back.
In its recommendations on the privacy, security and ownership of data in the telecom sector, the Telecom Regulatory Authority of India (Trai) has made specific reference to over-the-top players and suggested that the privacy recommendations that are applicable to licensed telecom service providers should also be extended to over-the-top players. While I have no quarrel with more entities being asked to adhere to privacy principles, I question whether Trai has the legal competence to extend its regulatory authority to the users of the telecom network.
Similarly, the government has, in order to combat the spread of fake news, been leaning on messaging applications like WhatsApp for access into their message groups in order to identify those who are spreading rumours on these platforms. While there is nothing to stop a public- spirited organization from voluntarily extending assistance to the government in order to forestall senseless vigilante violence, it is not within the supervisory authority of the telecom regulator to compel them to comply.
The government, it appears, is aware of the constraints it is operating under—and seems to have a strategy to deal with it. Reading through the Telecom Commercial Customer Consumer Preference Regulations of 2018, we now have a pretty good indication of what that might be.
The new regulations make it clear that Trai wants mobile subscribers to be able to amend their consumer preferences using an app. Since Trai has no authority over manufacturers of mobile phones, it has included in the regulations an obligation on all licensed access providers to ensure that devices registered on their respective networks must support the permissions required for the functioning of the Trai Do Not Disturb apps. The regulator is thus leveraging its authority over access providers to compel manufacturers, who are otherwise outside its direct sphere of influence, to comply with its directives.
This provides some insight into how the regulator intends to extend its authority into areas that are beyond its statutory authority to regulate. By exercising its authority over licensed operators, the regulator is threatening to cut off the oxygen that all manufacturers and over-the-top operators need to function, compelling them to comply if they want to continue to access the Indian market.
There is a principle in law which states that you cannot do indirectly that which you are prohibited from doing directly. The government, it appears, is exempt from its application.
Rahul Matthan is a partner at Trilegal and author of Privacy 3.0: Unlocking Our Data Drive Future. Ex Machina is a column on technology, law and everything in between. His Twitter handle is @matthan.
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