The Telecom Regulatory Authority of India (TRAI) on Friday put out a consultation paper asking if it would be possible for messaging apps such as WhatsApp to be brought under a licensing framework, and whether such apps can be banned “selectively” in places where an Internet shutdown would otherwise have been imposed.
TRAI had recommended in September 2020 that there was no need to regulate “OTT communication services,” the term for such apps that allow calling and texting over the Internet, often with encryption that makes it difficult for anyone to access the content of a given message or phone conversation.
That recommendation does not hold up, the Department of Telecommunications (DoT), which is the licensor for telecom operators, told TRAI last September, according to a reference published by the telecom regulator.
Dindayal Tosniwal, a Deputy Director General at the DoT, cited the “need to holistically look into the various aspects of these [messaging] services including regulatory, economic, security, privacy and safety aspects”.
Telecom operators — individually and through their associations — have called for messaging apps to be regulated, and demanded that they pay for some of the costs networks incur in running their infrastructure. “There should be the same norms for lawful interception and encryption for TSPs and OTTs,” Vodafone Idea told TRAI in a filing in 2019.
WhatsApp, the largest online communications app in India by far, complies globally with requests to share so-called “metadata”, such as a given user’s phonebook or the details of whom they called or messaged in a certain period. They cannot, however, share the contents of messages exchanged between users, or recordings of phone calls, as these are end-to-end encrypted, and inaccessible to telcos and WhatsApp itself.
Telecom operators, on the other hand, are complying with a vast number of these interception orders, which allow agencies to listen in on phone calls. In 2015, then IT and Communications Minister Ravi Shankar Prasad said in Parliament that 5,000 such orders were being passed each month. Last year, the Cellular Operators Association of India (COAI) said that these requests were “growing exponentially”, and Bharti Airtel even asked the government to reimburse it for surveillance requests.
While this consultation is based on references received from the DoT months ago, it assumes special significance considering the ongoing Internet shutdown in Manipur, which has spent weeks without mobile Internet or wired broadband after an Internet shutdown was ordered due to escalating communal tensions.
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The Manipur High Court has appointed a 12 member panel to look into whether it would be possible to restore Internet access while leaving social media websites and Virtual Private Networks (VPNs), which allow users to get around website and app restrictions, blocked.
TRAI’s questions on selective shutdowns appear to be along these lines, without reference to VPNs. Instead, the regulator has hinted at the possibility of a “collaborative framework” between telcos and OTTs. The regulator asked what challenges would be encountered in such a collaboration, including with respect to Net neutrality, the concept that all traffic on a network should be treated without discrimination in speed or pricing.
These proposals may run into resistance from the technology industry and civil society organisations, who have been aligned in the past on issues of privacy of online communications and in their opposition to Internet shutdowns.
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When the Electronics and Information Technology Ministry notified the IT Rules, 2021, with a requirement that messaging apps provide for “traceability” of the original sender of a forwarded message, WhatsApp approached the Delhi High Court to strike down the requirement, arguing that compliance would require it to weaken its encryption. The case, which may also have wider repercussions for how online communications are regulated, is still ongoing.
