“While trying to define an app and its primary service, ignore the fact that there is multifunctionality, there is a very wide range of services offered on the same platforms on the same services, and there can be no cookie-cutter approach to this in defining what a messaging service is,” said Neeti Biyani, Senior Advisor for Policy and Advocacy at the Internet Society when discussing the government’s recent call for defining Over-The-Top (OTT) services at MediaNama’s “App Bans and Network Fees” event.
Biyani discussed – along with Aman Taneja, Principal Associate at Ikigai Law, and Sumeysh Srivastava Manager-Public Police at The Quantum Hub – Telecom Regulatory Authority of India’s (TRAI) plans to regulate online communication platforms and create an “intelligible differentia” for services like “messaging,” “communication,” etc.
The phrase “intelligible differentia” means “difference capable of being understood.” So, in the context of TRAI’s consultation paper, it talks about defining terms like “messaging services,” and “calling services” that have been clubbed under the broader term of OTT services. However, as pointed out by many of the speakers during the event, drawing a distinction between these terms is difficult owing to multi-functionality.
MediaNama hosted this discussion with support from Google and Meta. CCAOI, the Centre for Communications Governance at the National Law University (Delhi), the Centre for Internet and Society, and The Internet Freedom Foundation were our partners for this event.
Why do we want these distinctions among OTT services?
Biyani also asked what arbitrariness is being addressed by way of asking for “intelligible differentia.” On a regulatory footing, OTTs are already governed by the Department of Telecommunications, and internet-based services are already governed by the IT Ministry and Ministry of Information and Broadcasting. So what is the arbitrary failure that we are trying to address here, she asked.
Similarly, Taneja pointed out that messaging apps are one of the many internet services regulated by the Information Technology Act of India. This means that provisions for law enforcement access already exist.
“The question is, why are we creating this distinction when general regulations do govern this place?” he asked.
Specificity is not required in the law but in the order: During the event, Shehlat Maknoon Wani, Research Associate – Emerging Tech & Policy, Council for Strategic and Defence Research, talked about how there is no real need for defining what these OTT services are under the law. Tying it to the discussion on intermediary classification, Wani said that an app/ service has to be determined “through its dominant functionality” at a court level.
“When you’re trying to prove to the court that you have satisfied safe harbor protection, you go to the court and you actually do that. So, that is where you sort of define your dominant functionality…I don’t think there has to be very specific categorization of each classification of intermediaries, because that fails to incorporate a future advancement and just platforms that are very multifunctional, so to speak,” said Wani.
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Can OTTs substitute traditional messaging? Taneja suggested that separate regulations may be useful in the case of substitutability. This raises a follow-up question of whether the services on these OTT communication platforms can function as substitutes for traditional voice messages.
Dynamic nature of internet complicates classification: Srivastava said that if an app’s primary function is messaging then there can be an argument to categorise apps in such a manner. However, he also said that it is “probably not a good idea to fit any OTT apps within any frameworks.” This is because apps can change what they are offering based on what users want or what the market wants.
What is “incidental,” keeps changing: As per Taneja, India is not the only country playing with the idea of “incidental” messaging services. The European Communication Code also uses similar language; one of the examples it gives is that of communication within a gaming platform. Even so, this would mean that varying apps are subject to varying amounts of regulation.
“It will be so dynamic, how do you keep track of what is an incidental feature to a service and what is the core functionality also for services that you have been describing that there could be multiple functions that are embedded, right? And one is not in derogation to the other,” said Taneja.
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End-to-end encryption vs national security—is E2E a law enforcement issue?
Participants discussed the government’s intent to break end-to-end (E2E) encryption by claiming concerns about national security. Biyani pointed out that E2E is a technology that is widely available on the internet similar to the technology around weapons. At the same time, E2E offers users the digital equivalent of having a conversation in a closed room. This, said Biyani, is a privilege enjoyed by Indian citizens.
“So, E2E encryption is not a law enforcement issue alone. It is a technology that helps keep a lot of people extremely safe, including children, the elderly, women, marginalised populations. So, when you talk about proportionality, I want to approach this issue beginning from there. Are we not willing to take into account the concerns that the most downtrodden, underprivileged, marginalised people in our country have? Do they have that right to be a citizen, not a subject?” said Biyani.
Breaking encryption does not help national security: Srivastava said that while national security as grounds for interception may not pass the proportionality tests, there have been instances like the Pegasus case where courts tend to give in to this argument. He suggested that rather than solely focusing on the grounds, it should be argued that breaking encryption encourages more bad actors.
“[We should argue] you are creating more and more risks for people who are on the internet. It might not work from the point of view of national security but you are not really helping to create a safer internet experience for people,” he said.
How does breaking encryption help capacity building? Simply because the State does not have the capacity to identify the source of the content and catch perpetrators does not give it free rein to restrict other fundamental rights, argued Srivastava citing the Anuradha Bhasin case. While this notion was a principle and not actioned in the case, the speaker argued that this is still grounds for contention.
Can licensing ease regulatory complications of OTT?
When asked whether registration of OTT players in the interest of national security can help with regulation, Srivastava said, “bad actors will just move into unregulated platforms and you [would] just [keep] cutting off the market for people who just want to use these platforms for other purposes.”
Biyani gave the example of how when introducing a licensing framework for apps, bigger companies with the required human resources, will be able to navigate that framework even with changes. However, it is unclear how this framework will affect smaller or home-grown entities.
She also pointed out that something like free speech cannot be regulated in the same manner as lending or payments.
“If I want to have a personal, private conversation with a friend and there is sensitive information in there where I am voicing my opinions, no bounds at all. Do I not have the privilege to do that? If I am defrauding someone and if I am harming that person on a monetary level, I should surely be held accountable for that. But being held accountable for my opinions in a way that this government is meditating it to be, it’s not the same thing to me. Like we can’t compare apples and oranges,” she said.
Is licensing a reasonable restriction? Jhalak Kakkar, Executive Director at the Centre for Communication and Governance, talked about how speech may still be similarly licensed under Article 19(1) of the Indian Constitution. However, she said the validity of this “reasonable restriction” would depend on the objective of the licensing which as per the government is “national security.”
“The challenge will be if the government uses the national security ground, we have seen courts being hesitant to engage with that and set stuff aside. Though of course I think there was a Media One judgement sometime back where Chandrachud did try to question the usage of the terminology in national security and saying that the government needs to justify it. So, I mean there are instances where it has been done but we sort of are in this vicious cycle, right now where we come back to national security,” she said.
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