Srikrishna panel upset at timing of Trai suggestions

The article by Megha Mandavia was published in Economic Times on July 19, 2018. Swaraj Paul Barooah was quoted.

On Monday, Telecom Regulatory Authority of India (Trai) in a surprise move recommended rules that give users control of their data and personal information while severely restricting ways in which telecom and internet firms can use customer data. Its rules are applicable for apps, browsers, operating systems and handset makers.

“Next week somebody will make some recommendations and that will have to be merged, then again somebody will make some other recommendations,” the person told ET. He added that the committee will look into Trai’s submissions.

On Wednesday, ET reported that officials of ministry of electronics and information technology (MeitY), besides industry groupings such as Internet and Mobile Association of India (IAMAI) and the Indian Cellular Association (ICA) were unhappy with Trai’s move.

“Like any other sector, the data protection Act will be the final thing. In respect of telecom matters, there will be a role for Trai as sectoral regulator but the basics of privacy will be governed by the data protection Act,” a MeitY official told ET.

Legal experts and industry analysts also questioned the need for the regulatory announcement just before the Justice Srikrishna committee releases its report, after a year of deliberations.

The high-powered group — consisting of jurists, academicians and policymakers — was formed last July with a brief to suggest principles for data privacy and a draft data protection bill for the country.

“Why is Trai then pre-empting the law?” said Kartik Maheshwari, leader for technology companies at law firm Nishith Desai Associates.

“Now that Trai has published its recommendations in public domain, the government may not be able to completely ignore them. But it’s so late in the day that it may not have any real impact on the final recommendations of the Justice Srikrishna committee,” he said.

The ten-member panel may incorporate some of Trai’s suggestions even as it submits its report to the union government next week. Trai chairman RS Sharma said the regulatory body has jurisdiction to tackle data protection under consumer interest, and those who feed off the industry — content providers, or apps, browsers, operating systems, and devices — were only custodians.

“We will send these recommendations to the committee, but we did not time it to coincide. We’re not dependent on the committee and we had issued this suo moto, since we felt the need to rigorously deliberate on the issue,” Sharma told ET on Tuesday.

There could be sector-specific laws within the general data protection framework for the telecom sector, he added.

Analysts say that regulators making public their recommendations before the data framework only adds to the confusion. “Industry was looking forward to a common primary framework. There are many independent suggestions coming from various regulators. It is creating confusion and chaos. I do expect considerable delay in finalising the law. Once the draft is out, there will be public consultation; all regulators will also have a say,” said Vidur Gupta, partner, government and public sector, EY India.

Others say that while there is clarity on what Trai is expecting, it has to be bound by the panel’s recommendations.

“It is good that a regulator has an eye on the market. It gives us an idea about what Trai has on its mind. The Reserve Bank of India also had not waited for Srikrishna Committee report before issuing a directive on data localisation,” said Swaraj Paul Barooah, policy director at Centre for Internet and Society.

“But the major point is that Trai’s recommendations are not binding; the data privacy law will be influenced by Justice Srikrishna committee only.”