INo bid to upgrade Indian Telegraph Act 1885A law that is more than a century old, issued by the Department of Telecommunications, or DoT Draft Indian Telecom Bill 2022 on 21st September. Among other things, the proposed law brings digital communication applications such as Signal and Telegram under telecommunications law and regulation and treats them like Internet and telecommunications service providers and broadcasters. An important implication here is that as telecom services, these applications would require a license to operate in India.
Digital communication applications are currently governed by the Ministry of Electronics and Information Technology (MeitY) and Information Technology Act 2000 Where no license is required. The move has been debated for the past few years, with the Telecom Regulatory Authority of India (TRAI) issuing several advisories on the matter, most recently 2018, DoT may have valid grounds for expanding its jurisdiction over digital communication applications, including policy mandates established by National Digital Communication Policy in 2018. However, there is a conflict that must be resolved, namely the jurisdictional overlap between the potential legislation and the existing information technology framework.
Read also: Getting out of a VPN is just the beginning. CERT-In’s cyber security rules will affect many players
what does the government think
A major reason for DoT to bring such applications under the telecom law is national security. Licensed telecommunications service providers must provide law enforcement officers with access to their networks and intercept messages during investigations. Conversely, there is a contention that digital communications applications have no equal liability, potentially leaving a gap in protecting national security interests. one forward assert It is that the encryption used by most digital communication apps hinders investigative efforts as it becomes difficult to trace user identities and prevent malfeasance on these platforms. The draft Telecom Bill seeks to bridge this gap by including a provision that enables the government to take measures in the name of national security, including issuing directions regarding the use of any telecom service. Presumably, licenses issued for digital communication applications under the proposed law would set out the conditions that would require these apps to provide access to their systems to law enforcement officials to monitor and intercept communications.
However, the IT Act already has provisions to enable legitimate interception and monitoring of messages sent through digital communication applications. Under Section 69 of the IT Act, the Central or State Government may, among other things, issue directions to do so in the interest of national security and protection of public order. In addition, rule 4 of Information Technology (Intermediate Guidelines and Digital Media Code of Conduct) 2021 Digital communication applications with 50 million or more users are needed to enable the identification of senders on their platform. The implication here is that digital communication apps will have to break encryption and create meaningful avenues for monitoring their services. Importantly, while Rule 4 has been challenged, it has No Any court barred that means digital communication apps will have to comply.
Read also: India does not need a media market regulator. Industry really needs more economic freedom
IT Act Vs Telecom Bill
It then appears that the provisions relating to national security in the draft Telecom Bill and the IT Act are intertwined. So how will the situation be resolved, since both have clauses that give them the ability to override provisions in other laws? Notably, both the draft Telecom Bill, 2022 and the IT Act have a non-constraint clause, a provision that enables a statute to retain the enforceability of its provisions which are contrary to it. Thus, in case of a contradiction between these two laws, which one will prevail?
Jurisprudence classifies certain statutes as special laws, acts designed to address a specific purpose. in the past, Courts has observed that the Indian Telegraph Act 1885 is a special law. By extension, it can be assumed that the same designation will be given to its successor, the Draft Telecom Bill 2022. However, in the case of Sarat Babu Digumarati Vs Sarkar heyf nct heyf DelhiThe Supreme Court also considered the IT Act as a special law. Now, according to judicial precedent, if there are two particular laws, the law enacted at a later date shall prevail if it contains a clause giving it overriding effect. Initially, it seems that the Telecom Bill will dominate the IT Act as the former will be implemented at a later date.
Although, reports Indicates that MeitY aims to introduce a new version of the IT Act, namely the ‘Digital India Act’. This law will potentially deal with matters related to legitimate interception and other matters related to the governance of digital communications applications. If such a law is passed, the ‘Digital India Act’ would supersede the enacted version of the Telecom Bill.
A situation arises where the Telecom Bill, if enacted, may face a judicial challenge. Based on the court’s analysis of the practice of specific laws, this proposed law is unlikely to come into force as the ‘Digital India Act’ will emerge after that. As such, there is a good chance that the efforts made to issue the telecom bills will be futile or put on hold due to dragged litigation. Thus, it may be appropriate for DoT to work with MeitY to work out a framework for legalized interception of digital communications under the new Information Technology Act. A broader and more important point is that legislative and institutional continuity makes better policy sense.
MeitY has efficiently managed the digital sector for the past two decades. It also has expertise in emerging technologies. Now involving the DoT to control digital communication applications can serve as a disruption of the status quo with potentially unintended and unforeseen consequences, and no guarantee of desired policy outcomes.
Meghna Bal is a Fellow at the Esya Center and advisor to Koan Advisory on issues related to emerging technologies. Thoughts are personal.
This article is part of ThePrint-Coen advisory series that analyzes emerging policies, laws and regulations in India’s technology sector. read all articles Here,
(Edited by Zoya Bhatti)