On August 10, MediaNama conducted a live discussion on the regulation and selective banning of calling and messaging platforms, a subject that is currently under consultation by the Telecom Regulatory Authority of India (TRAI). The discussion focused broadly on three themes— the implications of selective banning of applications, the impact of charging calling and messaging platforms a fee for their use of telecom companies’ infrastructure, and the creation of a licensing regime for these platforms.
Our objective was to identify:
- How do we define which tech-enabled services get banned during a ‘selective’ ban?
- Are there technical challenges to banning apps selectively? How do these differ for service providers (the apps/services), the government, etc.?
- Why does TRAI want to venture into selective blocking—when content can be blocked under Section 69A of the IT Act, 2000?
- How will the selective banning of communication services influence the proportionality debate?
- Should apps be required to obtain a license for their operations, just like telecom companies?
- If OTT communication platforms are required to contribute to the Universal Services Obligation Fund (USOF) like telecom companies are supposed to, what would the collected funds be used for?
- What are the implications of charging communication platforms a network fee?
- How do you define communication services and then differentiate a messaging app from a calling app?
Almost unanimously, every one of the speakers at MediaNama’s discussion on App Bans and Network Fees highlighted that to regulate and selectively ban online communication platforms, one first needs to define what are online communication platforms, or as TRAI calls them, OTT communication apps. Given the diverse services being offered by platforms today, it is hard to decisively conclude what is a communication platform. If platforms where messaging is incidental are excluded from regulation, it would mean that different apps would be subject to varying amounts of regulation. Moreover, a rigid classification would fail to incorporate future advancements in platforms. So, if a platform that currently only offers messaging and is classified as a “communication app” later decides to offer payments or e-commerce as a function, how would this platform then be classified? That remains unclear.
The discussion also delved into the confusion around charging communication platforms a network fee for the use of telecom infrastructure. It was mentioned that before deciding on charging network fees, the preliminary focus should be on listing problems that this action would address (if there are any). Further, it was brought up how discussions in India are focused on applying network fees to communications apps in comparison to global discussions covering all those apps that consume a large amount of bandwidth. However, the fact that some major telecom operators are making a significant profit from their businesses, despite claiming that they are losing business because of communication platforms, should be enough to debunk the idea that any online platform should pay a network fee. Discussants were collectively not in favour of communication platforms being charged a network fee or being asked to contribute to the Universal Service Obligation Fund (USOF). The focus should be on the deployment of the existing USO Fund first, and there is no clear rationale for asking online services to contribute to it. Speakers were of the opinion that network fees could lead to the erasure of net neutrality and could affect people’s access to the internet since the fee would be passed down to the end user.
Concerning selective banning, discussants said that the internet is largely made up of dominant big tech players, and if these players are shut down, it disrupts critical services. Moreover, if only these big tech players were banned, bad actors could move on to other lesser-known services. It was agreed that banning orders, be it for specific apps or the internet overall, need to be based on clearly defined and adequately articulated reasons. Questions were also raised about how federated messaging ecosystems will be managed under the selective banning provisions and that it is also easy for anyone to create an app using XMPP protocols for messaging, and thus, it’s impossible to ban a protocol. It was felt that there was a need for a data-driven assessment of the effectiveness of an internet shutdown before selective app bans are implemented.
Similarly, breaking encryption in lieu of national security was also questioned by the discussants. They said that end-to-end encryption helps protect people from bad actors and that breaking it would be counterproductive to protecting national security.
The discussion also reflected on whether communication platforms should be required to obtain a license, just like the telecom companies are currently expected to. It was expressed that this wouldn’t be fair, given that for telecom companies, licensing corresponds with exclusivity, which communication apps do not enjoy. Discussants argued that if such a licensing regime was put in place, bigger platforms would be better able to navigate the licensing requirements owing to their considerable resources, and on the same grounds, it remains uncertain whether smaller platforms would be able to ensure compliance or not. Discussants mentioned that regulators must reflect on how licensing might affect consumer choice. They felt that licensing would create a barrier to entry for newer communication platforms.
Video and Coverage
MediaNama’s coverage of the discussion can be found here.
About the discussion
Understanding issues with banning of specific apps:
- Jhalak Kakkar (CCG at NLU Delhi)
- Maknoon Wani (Council for Strategic and Defense Research)
- Samar Bansal (Lawyer)
- Aditi Agrawal (Freelance technology journalist)
Net Neutrality and collaborative frameworks between telcos and online services:
- Amrita Choudhury (CCAOI)
- Rahil Chatterjee (Ikigai Law)
- Nikhil Pahwa (MediaNama)
- Vakasha Sachdev (Logically.AI)
Regulation of online messaging and calling:
- Neeti Biyani (ISOC)
- Aman Taneja (Ikigai)
- Sumeysh Srivastava (The Quantum Hub)
- Nikhil Pahwa (MediaNama)
We saw participation from organisations such as High Court of Delhi, Luthra & Luthra Law, Malayala Manorama, Meta, Outlook, Polygon Technology, PRS Legislative Research, PwC, SAM, Saraf & Partners, Sdela Telecom LLP, Snap Inc, Symbiosis International University, TechCrunch, The Asia Group, The Hindu, The Quantum Hub, United States – India Business Council, USLLS, Viacom18, and Zebra Technologies.
Support and partners:
MediaNama hosted this discussion with support from Google and Meta, and in partnership with CCAOI, the Centre for Communications Governance at the National Law University (Delhi), the Centre for Internet and Society, and The Internet Freedom Foundation.