Govt has no power to break encryption- Vaishnaw

Govt has no power to break encryption: Vaishnaw

The new Telecom Act does not, in any manner give either the government or the service providers, the power to break encryption of messages exchanged via over-the-top platforms or intercept them, communications and IT minister Ashwini Vaishnaw told Fe in a wide-ranging interview.

While highlighting how the Act will usher in an era of structural reforms, Vaishnaw dismissed criticism by some analysts that the definition of telecom service has been left vague, which gives the government the power to regulate OTTs at any future date by way of interception and break encryption. “The telecom service providers do not know what’s entering and exiting the pipe, then how can the government get to know? The government does not have the power to ask service providers to break encryption or intercept as it is not part of the terms and conditions of the authorisation,” he said, adding “the only power the government has is to ask service providers to block fraudulent numbers”.

“One needs to see the definition with the applicability clause, which is Section 3 which categorises the forms of services which need authorisation from the government and OTTs do not figure in that. “Definition has to be seen in context and where it is being used,” Vaishnaw said.

Under Section 3 of the Telecom Act, any person intending to provide telecommunication services; establish, operate, maintain or expand telecommunication network; or possess radio equipment, shall obtain an authorisation from the government.

The minister said that rules of business in the government are very clear that telecom service relates to carriage which is the domain of the department of telecommunications, while apps fall in the domain of ministry of electronics and IT. “Similarly, content is overseen by the information and broadcasting ministry, fintechs by the finance ministry, and e-commerce apps by the ministry of commerce and industry. Let’s be clear about one thing that OTTs will not be regulated by the Telecom Act,” he said.

“We have drafted the Telecom Act in such a way that it will not require amendment for at least next 10-15 years. In the IT Act, serious amendments are needed, on which we are working and a Digital India Bill will be there,” Vaishnaw said.

He added that in case of any amendments in the Telecom Act, it needs to be placed before both the houses of the Parliament.

Responding to some critics alleging that the Act gives the government powers to notify standards for encryption and interception, the minister said that the principles of interception have been laid down by the Supreme Court and the Telecom Act adheres to it. “There are nine areas where the SC has granted the government powers to intercept. The Bill has narrowed it to five. The procedure for any lawful interception is already laid down in law, so there’s no cause for concern,” he said.

Vaishnaw said that the Act lays down that in the event of any cyber crime, intelligence agencies need to present evidence in an intelligible format. Currently they just provide huge data dumps which are difficult for investigators to decipher.

Among the big reforms the new law has brought in, the telecom minister mentioned contextualising the Supreme Court’s 2012 judgment mandating that all spectrum should be allocated through auctions. Since for certain services auction is not possible, for the first time the government has laid down the principles to identify such services. So, for any form of government service, which includes defence, public interest, and technical infeasibility, will be areas where spectrum can be allocated administratively. Satellite broadband services, where airwaves will not be allocated through auctions, falls in the third category. The list of such services has been mentioned in Schedule 1 of the Act. “This way, we have removed all ambiguity as well as discretion with regard to mode of spectrum allocation,” Vaishnaw said.

He said that another big area of reform – taking back spectrum from insolvent telcos – will be dealt with separately by an amendment in the Insolvency and Bankruptcy Code. “We had included this clause in the draft Bill as no insolvency case has so far got resolved in the telecom sector. But later, we felt that this should be done through amendment in the IBC, which we cannot do, hence we removed it from the final version,” he said. However, Vaishnaw said that the Act has clearly stated that in case a telco goes bankrupt, the spectrum needs to come back to the government as it’s public property, hence there’s no more debate as to whom it belongs to.

The telecom minister said that the 2021 revival package which was offered to financially distressed telecom service providers like Vodafone Idea, also does not find place in the new law, because of the potential of misuse by any future government or minister. “During consultations, it came out very clearly that today’s government has clean intention but, say tomorrow some other government comes and may misuse it, so it should not be there as a law, but can remain outside it. It was also giving a perverse incentive to companies,” he said.

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