This submission presents comments by the Centre for Internet & Society, India (“CIS”) on the Draft Digital Communications Policy which was released to the public by the Department of Telecommunications of the Ministry of Communications on 1st May 2018 for comments and views.
Preliminary
On 1st May 2018, the Department of Telecommunications of the Ministry
of Communications released the Draft Digital Communications Policy for
comments and feedback. We laud the Government’s attempts to realise the
socio-economic potential of India by increasing access to Internet,
and drafting a comprehensive policy while adequately keeping in mind the
various security and privacy concerns that arise due to online
communication. On behalf of the Centre for Internet & Society (CIS),
we thank the Department of Telecommunications for the opportunity to
submit its comments on the draft policy.
We would like to point out two concerns with the consultation
process: (i) a character-limit imposed on the comments to each section,
due to which this submission has to sacrifice on providing comprehensive
references to research; and (ii) issues with signing in on the MyGov
where this consultation was hosted. We strongly recommend that the
consultation process be liberal in accepting content, and allow for
multiple types of submissions.
Comments
Connect India: Creating a Robust Digital Communication Infrastructure
On 2022 Goals
a. Provide Universal broadband coverage at 50 Mbps to every citizen
According to UNICEF’s 2017 report,
Children in a Digital World,
only 29% of the internet users in India are female. It is essential
that the policy recognise the wide digital gender gap and other
differences in internet access that result from traditional
sociocultural barriers. Therefore, we recommend that the goal read as:
“Provide Universal broadband coverage at 50 Mpbs to every citizen, with
special focus on increasing internet access for women, people with
disabilities, and historically-marginalised communities.”
g. Ensure connectivity to all uncovered areas
The term “connectivity” should be changed to “active internet
connectivity”. As per the current norms, a gram panchayat may be
considered “connected” if the fibre infrastructure exists, but this does
not necessarily mean an active internet connection being serviced in
the area. For example,
as on May 20, “of 1.22 lakh gram panchayats with
fibre connectivity, 1.09 lakh had active internet.”
On Strategies
1.1 (a) i. BharatNet – Providing 1 Gbps to Gram Panchayats upgradeable to 10 Gbps
The Central Government, under the “State-led” implementation of the
BharatNet initiative, has allowed certain state governments to
implement the program in their respective states. This has allowed State
Governments to take misplaced liberty with the core objective of the
program, which originally was to increase access to internet services.
For example, after the Telecom Commission’s approval of Andhra Pradesh’s
“State-led” implementation of the program, the state government set up a
body corporate Andhra Pradesh State FiberNet Limited. This body then
went on to
exceed its mandate by venturing into the television
broadcasting and distribution business by offering Internet Protocol
Television (IPTV) services. This is deeply problematic a it indicates
that central government funds meant for increasing internet access are
being used for IPTV services, despite the TRAI’s repeated
recommendations (since 2012) that state-owned entities should not be
allowed to enter broadcasting and distribution activities ; allowing
state entities in the business is against fair play and competition,
runs contrary to the principle of independent and free media, and has
chilling effects on the freedom of expression.
Additionally, this has created a problem for aggregated data
availability on the expenditure on the program. While the central
government should ideally have all data pertaining to state-wise
expenditure of funds for the program, data regarding the states
implementing the initiative on their own is
generally excluded from the
data provided by the Ministry. The goals of the program need to be
specifically defined so that funds are directed effectively. The program
needs stricter monitoring mechanisms to ensure that the intended
objectives are met.
1.1 (a) iv. JanWiFi – Establishing 2 Million Wi-Fi Hotspots in rural areas
Under present regulations, resale of communication data logged by
WiFi hotspots is not permitted. However,
recent news
reports suggest
that the DoT may change these norms to permit (virtual network)
operators to further sell this information. We understand that while
changing such norms may incentivise the operators to set up WiFi
hotspots, however, the proliferation of internet access cannot come at
the cost of privacy of users. The data available to the operators of
these hotspots includes all browsing data, which is sensitive private
information, and thus, should be restricted from sale. We strongly
recommend that in compatibility with the security & privacy goals
for consumers envisioned in the latter sections of this draft policy,
the DoT ensure that strong privacy measures are in place for public WiFi
hotspots made available through programs like JanWiFi.
1.1 (f) Enabling Infrastructure Convergence of IT, telecom and broadcasting sectors
The policy proposes a convergence of the infrastructure
administration currently performed by three central Government
departments: IT, Broadcasting and Telecom. As admitted in the draft,
this will require amendments, amongst many Acts, to the Telegraph Act.
However, the draft policy has not clearly delineated the new proposed
responsibilities for each department, and avoids elaborating on the
nuance that will be required to address the multiple legal and
administrative concerns stemming from the proposed convergence. The
document also fails to detail how infrastructure (say internet access
through 4G) will be regulated differently services (say IPTV operating
on 4G). Further clarity is also required (i) how department-specific
concerns (which are unsuited for a larger body) will be handled; and
(ii) regarding the auspices under which the new converged body will
operate.
1.2 (a) Making adequate spectrum available to be equipped for the new broadband era
TRAI’s
consultation paper, Allocation and Pricing of Microwave
Access (MWA) and Microwave Backbone (MWB) RF carriers (March 2014),
recommends the exploration of the usage of the E-band (71 - 76 / 81-86
GHz) and V-band (57-64 MHz), and for the allocation of the same to
telecom service providers. We recommend that the Ministry accept TRAI’s
recommendations, and reflect it in this policy.
While the draft policy aims to decrease regulation of the spectrum,
including liberalising spectrum “sharing, leasing and trading” regime,
in addition, the policy should clear the government’s stance on
unlicensed spectrum usage. CIS has written earlier (
June 2012) about the
demonstrable need for unlicensed spectrum to create a path for
inexpensive connectivity in rural and remote areas.
1.2 (a) v. Optimal Pricing of Spectrum to ensure sustainable and affordable access to Digital Communications
The draft policy should review existing approach to spectrum
pricing in India. The Indian telecom sector is under heavy debt, and if
rejuvenating this sector is a purported goal of this policy via “optimal
pricing of spectrum”, auctions with a view to revenue maximisation
should no longer remain the preferred method of assigning spectrum. The
National Telecom Policy, 1999 which adopted a revenue-sharing approach
to license fees, showed good results for the sector and translated into
huge benefits for consumers. The government should adopt a similar
approach to rescue the industry.
Propel India: Enabling Next Generation Technologies and Services
through Investments, Innovation, Indigenous Manufacturing and IPR
Generation
On Strategies
2.2 (a) ii. Simplifying licensing and regulatory frameworks
whilst ensuring appropriate security frameworks for IoT/ M2M /
future services and network elements incorporating international best
practices
The process of “simplifying” licensing and regulatory regime is
currently vague, and the intentions remain unclear. Simplifying licences
without clear intentions can lead to losing the necessary nuance in the
license agreements required to maintain competitive markets. In recent
months, the industry has already witnessed a dilution of provisions
which were placed to ensure healthy competition in the sector. For
example, on May 31st, new norms were announced by DoT under which now
allow an operator to hold 35% of the total spectrum as opposed to the
earlier regulation which only allowed for holding a maximum 25% of the
total spectrum.
2.3 (d) (iii) Providing financial incentives for the
development of Standard Essential Patents(SEPs) in the field of digital
communications technologies
This is a welcome step by the government to incentivise the
development of SEPs in the country. However, this appreciable step will
only yield results in the long term - and realistically speaking, not
before a decade. It is equally necessary to improve the environment of
licensing of SEPs in the short-term. The government should take
initiative for creation of government-controlled patent pools for SEPs,
which will solve issues of licensing for SEP holders, and also improve
transparency of information relating to SEPs. Specifically, we recommend
that the government initiate the formation of a patent pool of critical
mobile technologies and apply a five percent compulsory license.
Secure India: Ensuring Digital Sovereignty, Safety and Security of Digital Communications
On Strategies
3.1 Harmonising communications law and policy with the evolving
legal framework and jurisprudence relating to privacy and data
protection in India
We welcome the Ministry’s intention to amend licence agreements to
include data protection and privacy provisions. In the same vein, the
Ministry should also consider removing provisions from licenses that
prevent the operator from using certain encryption methods in its
network. For example, Clause 2.2 (vii) of the License Agreement between
DoT & ISP prohibits bulk encryption. Additionally, in the License
Agreement, encryption with only up to 40-bit in RSA (or equivalent) is
normally permitted. Similarly, Clause 37.1 of the Unified Service
License Agreement prohibits bulk encryption. These provisions must be
revised to ensure that ISPs and other service providers can employ more
cryptographically secure methods.
When regulating on encryption, we recommend that the government only
set positive minimum mandates for the storage and transmission of data,
and not set upper limits on the number of bits or on the quality of
cryptographical method. In pursuance of the same goals, we also
recommend adding point ‘iii’ to 3.1 (b): “promoting the use of
encryption in private communication by providing positive minimum
mandates for strong encryption in (or along with) the data protection
framework.”
3.2 (a) Recognising the need to uphold the core principles of net neutrality
Like other goals of the draft policy, the target for ensuring and
enforcing net neutrality principles has been set as 2022. However, this
goal is achievable by as early as December 2018. We suggest that the
Government take the first step towards this goal by accepting the net
neutrality principles proposed by the TRAI and its recommendations to
the government which have been pending with the Ministry since November
2017. The government may additionally take into consideration CIS’
position on net neutrality.
The vaguely worded “appropriate exclusions and exceptions” carved out
to net-neutrality principles in the policy need urgent elaboration.
Given the vague boundaries between different control layers in digital
communication, content regulation is very easy to slip into, and needs
to be consciously avoided by the government.
3.3 (f) ii. Facilitating lawful interception agencies with
state of the art lawful intercept and analysis systems for
implementation of law and order and national security
There is no clarity in policy on how the government plans to meet the
goal of “[f]acilitating lawful interception agencies with state of the
art lawful intercept and analysis systems for implementation of law and
order and national security.” It has been recently suggested that some
legal provisions that enable targeted communication surveillance might
be violative of the privacy guidelines laid out in the recent Supreme
Court judgment that affirmed the Right to Privacy. Additionally, mass
surveillance, prime facie, does not meet the “proportionality test.”
Therefore, the policy documents needs details as to how the Ministry
will aid intelligence agencies, and whether these interception details
will be known to ISPs, TSPs and the public via reflection in the various
License Agreements.
