Opinion
A selective OTT ban will impose too heavy a cost on the country
Summary
Such a mechanism proposed by TRAI will be hard to implement and potentially violative of Constitutional rights as wellThe Telecom Regulatory Authority of India’s (TRAI) proposal for a selective banning mechanism for over-the-top (OTT) platforms has ignited discussions on its technical and legal practicality. OTT platforms can restrict OTT applications for the general public if needed. However, implementing localized bans poses significant challenges. OTT platforms must ascertain the user’s location, usually through GPS or cell ID data. Yet, not all devices have GPS, and obtaining user consent for location data access raises privacy concerns. Mandating GPS data access, possibly through government directives, could jeopardize individuals’ privacy rights and violate the proportionality principle outlined by the Judiciary in the Puttaswamy judgement. Cell ID data, essential for location tracking, is primarily held by network operators and protected from app providers for privacy reasons. OTT service providers can also use the IP addresses of users to block access, but this requires pinpointing the user’s precise IP address in a given locality. Users can easily mask their IP addresses using tools like VPNs and proxy servers. This situation might allow malicious actors to successfully bypass restrictions, while legitimate users would inadvertently bear the consequences of these measures.
Instead of OTT platforms implementing selective bans, telecom service providers (TSPs) can attempt selective bans on OTT applications by targeting the IP addresses associated with OTT service provider servers. However, this approach comes with challenges. IP addresses serve as the ‘home addresses’ of OTT services, and just as individuals safeguard their home addresses for safety reasons, OTT service providers are cautious about sharing their IP addresses with TSPs. They fear that sharing could expose them to cyberattacks or unauthorized access. Even if OTT providers share their IP addresses, they often change dynamically, especially since most OTT platforms are hosted on cloud servers. The dynamic nature of IP addresses means that several other OTT services may be hosted on the same IP address, leading to the over-blocking of OTT services.
Disproportionate ramifications for fundamental rights: OTT services have seamlessly integrated into daily routines, serving as communication channels and platforms for various other crucial activities, including small business operations. Restricting access to OTT platforms can infringe fundamental rights, specifically those under Articles 19(1)(a) and 19(1)(g) of the Constitution.
The Supreme Court, in Anuradha Bhasin vs. Union of India (2020), affirmed that “the right to freedom of speech, expression, and online trade or business under Article 19(1)(a) and 19(1)(g) are constitutionally protected," even when these rights are exercised over the internet. Limiting access to critical OTT services would contravene this judgement, especially given the lack of data to prove that selective banning is the most effective approach for countering illegal and harmful online content or upholding public order. While selective bans might seem less severe than complete shutdowns, considering the ubiquity of OTT platforms, such a ban would severely affect millions. Considering the proportionality principle, even a marginally lenient measure isn’t justified constitutionally, unless it’s the least restrictive action.
Impact on net neutrality and end-to-end encryption: Net neutrality comprises three principles: end-to-end connectivity, best efforts in traffic delivery and permission-free innovation. It means keeping the internet open, secure and accessible to promote innovation in ideas, commerce, culture and expression worldwide. Equal access to all websites and platforms is crucial. Selective bans violate net neutrality, potentially denying access to critical OTT platforms, undermining fair competition, and jeopardizing users’ fundamental rights
Selective banning can also endanger secure encrypted communication services that people rely on to communicate privately, especially amid crisis. Any prohibition on encrypted services would be to the detriment of millions of people in India. This would affect online safety and the right to privacy because any instance of selectively banning communication services with end-to-end encryption would deprive people of confidential communication channels that preclude surveillance, including by the service provider.
Note that public servants, security and law enforcement officials also use end-to-end encrypted communication platforms and banning these would undercut law-and-order while also rendering the state machinery vulnerable to foreign espionage. A case at hand is the Greek Watergate Scandal, where unknown actors tapped the phones of the political and military elite through a vulnerability (a backdoor) created for law enforcement agencies.
Existing laws can be relied on to regulate online content and OTT services: Section 69-A of India’s IT Act, coupled with ‘Blocking Rule,’ offers a framework to block online content or entire OTT platforms if needed to safeguard India’s sovereignty, national security and public order. Similarly, Section 79 of the IT Act, in conjunction with the IT Rules of 2021, authorizes the government to block online content under specific conditions. These existing provisions already allow for the regulation of online content and OTT services without excessively limiting public access.
In an era where online communication is as natural as breathing, OTT platforms are more than just technology; they are lifelines connecting us to the world. Not only would a selective ban on these platforms be technically challenging, but also replete with legal and constitutional complexities. For the average Indian, this isn’t just about access to an app, but about preserving the essence of our digitally interwoven lives. Selectively banning OTT service is not just infeasible, it’s a step away from the progressive, connected world we envision for ourselves and our country.
