Centre for Internet and Society

Section 66-A, Information Technology Act, 2000: Cases

snehashish — 2012-12-06T09:20:51Z

In this blog post Snehashish Ghosh summarizes the facts of a few cases where Section 66-A, Information Technology Act, 2000, has been mentioned or discussed.

There has been numerous instances application of the Section 66-A, Information Technology Act, 2000 (“ITA”) in the lower courts. Currently, there are six High Court decisions, in which the section has been mentioned or discussed. In this blog post, I will be summarizing facts of a few cases insofar as they can be gathered from the orders of the Court and are pertinent to the application of 66-A, ITA.

Sajeesh Krishnan v. State of Kerala (Kerala High Court, Decided on June 5, 2012)

Petition before High Court for release of passport seized by investigating agency during arrest

In the case of Sajeesh Krishnan v. State of Kerala (Decided on June 5, 2012), a petition was filed before the Kerala High Court for release of passport seized at the time of arrest from the custody of the investigating agency. The Court accordingly passed an order for release of the passport of the petitioner.

The Court, while deciding the case, briefly mentioned the facts of the case which were relevant to the petition. It stated that the “gist of the accusation is that the accused pursuant to a criminal conspiracy hatched by them made attempts to extort money by black mailing a Minister of the State and for that purpose they have forged some CD as if it contained statements purported to have been made by the Minister.” The Court also noted the provisions under which the accused was charged. They are Sections 66-A(b) and 66D of the Information Technology Act, 2000 along with a host of sections under the Indian Penal Code, 1860 (120B – Criminal Conspiracy, 419 – Cheating by personation, 511- Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment, 420 – Cheating and dishonestly inducing delivery of property, 468 – Forgery for purpose of cheating, 469 – Forgery for purpose of harming and 201 – Causing disappearance of evidence of offence, or giving false information to screen offender read with 34 of Indian Penal Code, 1860)

Nikhil Chacko Sam v. State of Kerala (Kerala High Court, Decided on July 9, 2012)

Order of the Kerala High Court on issuing of the summons to the petitioner

In another case, the Kerala High Court while passing an order with respect to summons issued to the accused, also mentioned the charge sheet laid by the police against the accused in its order. The accused was charged under section 66-A, ITA. The brief facts which can be extracted from the order of the Court read: “that the complainant and the accused (petitioner) were together at Chennai. It is stated that on 04.09.2009, the petitioner has transmitted photos of the de facto complainant and another person depicting them in bad light through internet and thus the petitioner has committed the offence as mentioned above.”

J.R. Gangwani and Another v. State of Haryana and Others (Punjab and Haryana High Court, Decided on October 15, 2012)

Petition for quashing of criminal proceedings under section 482 of the Criminal Procedure Code, 1973

In the Punjab and Haryana High Court, an application for quashing of criminal proceeding draws attention to a complaint which was filed under Section 66-A(c). This complaint was filed under Section 66-A(c) on the ground of sending e-mails under assumed e-mail addresses to customers of the Company which contained material which maligned the name of the Company which was to be sold as per the orders of the Company Law Board. The Complainant in the case received the e-mails which were redirected from the customers. According to the accused and the petitioner in the current hearing, the e-mail was not directed to the complainant or the company as is required under Section 66-A (c).

The High Court held that, “the petitioners are sending these messages to the purchasers of cranes from the company and those purchasers cannot be considered to be the possible buyers of the company. Sending of such e-mails, therefore, is not promoting the sale of the company which is the purpose of the advertisement given in the Economic Times. Such advertisements are, therefore, for the purpose of causing annoyance or inconvenience to the company or to deceive or mislead the addressee about the origin of such messages. These facts, therefore, clearly bring the acts of the petitioners within the purview of section 66A(c) of the Act.”

Mohammad Amjad v. Sharad Sagar Singh and Ors. (Criminal Revision no. 72/2011 filed before the Court of Sh. Vinay Kumar Khana Additional Sessions Judge – 04 South East: Saket Courts Delhi)

Revision petition against the order of the metropolitan magistrate

In a revision petition came up before the Additional Sessions Judge on the grounds that the metropolitan magistrate has dismissed a criminal complaint under Section 156(3) of the Criminal Procedure Code without discussing the ingredients of section 295-A, IPC and 66-A, IT Act.

In this case, the judge observed that, “...section 66A of Information Technology Act (IT Act) does not refer at all to any 'group' or 'class' of people. The only requirement of Section 66A IT Act is that the message which is communicated is grossly offensive in nature or has menacing character.” He also observed that the previous order “not at all considered the allegations from this angle and the applicability of Section 66A Information Technology Act, 2000 to the factual matrix of the instant case.”

For more details visit https://cis-india.org/internet-governance/blog/section-66-a-information-technology-act-2000-cases

New Telecom Policy, 1999

snehashish — 2013-03-15T05:56:53Z

The New Telecom Policy, 1999 was formulated on the basis of the report of Group on Telecommunication. The Government, constituted a high level Group on Telecommunication (GoT) to review the existing telecom policy i.e., the National Telecom Policy, 1994. The main reason for a new telecom policy was that the goals of the National Telecom policy, 1994 were not achieved within the stipulated time period and on the other hand there was immense growth in information and communication technology, this led to the need for a change in the telecom policy.

Objectives

The objectives of the New Telecom Policy, 1999 were:

Access to affordable and effective means of telecommunication for all citizens. Strike a balance between universal services to all uncovered areas and high level services.
Encourage development of telecommunication facilities in remote, hilly and tribal areas of the country.
Formation of a modern and efficient telecommunication system based on convergence of IT, media, telecom and consumer electronics to propel India into becoming an IT superpower.
To alter PCO’s, wherever justified into Public Tele-info Centres having multimedia capability like ISDN services, remote database access, government and community information systems etc.
Strive to transform in a time bound manner a competitive telecommunication system in both rural and urban areas.
Achieve efficiency and transparency in spectrum management. Protect the defence & security interests of the country. Enable Indian Telecom Companies to become truly global players.
Encourage research and development efforts in the country.

Targets of the New Telecom Policy, 1999

Access to telephone on demand by the year 2002 and sustain it thereafter to achieve a tele density of 7 by the year 2005 and 15 by the year 2015.
Encourage development of affordable telecommunication system in rural areas and making rural communication mandatory for all fixed service providers
Provide reliable transmission media in all rural areas and increase the rural tele-density from the current level of 0.4 to 4.0 in 2010.
Make available internet access to all district headquarters by the year 2000.
Access to high speed internet and multimedia capabilities using ISDN to all towns with a population over 2 lakh by the year 2002.

New Category of Service Providers

The New Telecom Policy, 1999 strived to create an environment which would enable a continued attraction of investment in the telecom sector and also enhance creation of technological infrastructure by leveraging technological development. Categorisation of services as per the National Telecom Policy, 1999:

Cellular Mobile Service Providers (CMSPs),
Fixed Service Providers (FSPs) and Cable Service Providers, collectively referred as ‘Access Providers’;
Radio Paging Service Providers;
Public Mobile Radio Trunking Service Providers;
National Long Distance Operators;
International Long Distance Operators;
Other Service Providers;
Global Mobile Personal Communication by Satellite (GMPCS) Service Providers;
V-SAT based Service Providers

Restructuring of the Department of Telecommunication (DoT)

Before the 1999 Policy, licensing, policy making and the service provision functions were under the purview of DoT. The Policy indicated that the Government will separate the policy and licensing functions of the DoT from the service provisioning function of it. It also stated that corporatization of DoT will take place by the year 2001 after keeping in mind the interest of all the stakeholders.

It also envisaged that all the future relationships between DoT and MTNL and BSNL will be based upon best commercial principles.

Spectrum Management

The Policy noted that with the introduction of new technologies into the market the demand for spectrum has increased. It also recognized the need for utilizing spectrum efficiently, economically, rationally and optimally. Under the Policy, the Government intended to revise the National Frequency Allocation Plan. The allocation plan would be in conformity with the International Telecommunication Union (ITU) regulations.

Universal Service Obligation Fund (USOF)

Under the Policy the Policy the Government planned to achieve certain targets to provide basic telecom services at an affordable and reasonable price. The objectives were:

Provide voice and low speed data service to the balance 2.9 lakh uncovered villages in the country by the year 2002
Achieve Internet access to all district head quarters by the year 2000
Achieve telephone on demand in urban and rural areas by 2002

The resources and funding for the USOF will be realised from a universal access levy which would be a percentage of the revenue earned by the service providers under the different licences. This will be fixed in consultation with the Telecom Regulatory Authority of India (TRAI).

Role of Regulator

The Policy clarified the role of TRAI in the telecom sector. This was done with regard to the problem where the DoT refused to accept the TRAI’s jurisdiction over some legal questions. The Policy expressly mentions that TRAI is envisioned to be an independent regulator with comprehensive powers. It stated that TRAI has the authority to hear disputes regarding telecommunication and also issue directives to the Government.

The Policy also clarified that the Government will invariably take into consideration TRAI’s recommendation with respect to licensing issues. It also completely ruled out any possibility of delegation of the Government’s licensing and policy making powers as they are essential sovereign functions that cannot be delegated. The Policy also specified regulatory and advisory assignments for TRAI. It would be responsible for formulating regulatory details, licensing conditions and various guidelines with respect to different classes of service providers.

Other Mandates of the Policy

The Policy addresses the issue of standardization. In order to establish integrated telecommunication network and common standards with respect to telecom equipment and services, Telecommunication Engineering Centre will set standards.

The Policy promotes the indigenous manufacturing of telecom equipment for domestic use as well as for export. The Policy also emphasizes on development and training of human resources for all fields related to telecommunications. It also recognizes telecommunication as the prerequisite to development of other technologies. It also ensures that the telecom industry should adequately invest in research and development.

Amendment to the New Telecom Policy, 1999

On 11th November, 2003, an addendum was added to the New Telecom Policy, 1999. The addendum introduced the Unified Licence for telecommunication services which would allow the licensees to provide all telecommunication/ telegraph services covering various geographical areas using any technology.

It also introduced a licence for Unified Access (Basic and Cellular) services which would a licensee to provide basic and/or cellular services using any technology in the define service area.

For more details visit https://cis-india.org/telecom/resources/new-telecom-policy-1999

National Telecom Policy, 2012

snehashish — 2013-03-15T06:00:26Z

The National Telecom Policy, 2012 was approved by the Union Cabinet on May 31, 2012.

The vision of the policy is, “to provide secure, reliable, affordable and high quality converged telecommunication services anytime, anywhere for an accelerated inclusive socio-economic development”. The policy also aims at recognizing telecom as infrastructure in order to realize the potential of ICT for development.

The main components of the policy are:

Broadband Rural Telephony and Universal Service Obligation Fund
R&D, Manufacturing and Standardization of Telecommunication Equipment
Licensing, Convergence and Value Added Services
Spectrum Management
Quality of Service and Protection of Consumer Interest
Security

Vision of the National Telecom Policy, 2012

The vision of the Policy is, “to provide secure, reliable, affordable and high quality converged telecommunication services anytime, anywhere for an accelerated inclusive socio-economic development”. The vision is to transform the country into an empowered and inclusive knowledge based society through telecommunication as the platform. Information and access to information is a major part of any development scheme, better communication systems can help in increasing awareness and knowledge about various issues in the society.

Background

The growth of telecommunication in rural areas has been slow, with only 34 per cent of the total connections. There is an urgent need to bridge this digital divide and communication gap by providing better and advanced telecommunication services in the rural and remote areas. The current National Telecom Policy, 2012 also aims at an investor friendly policy. It also seeks to generate employment in various telecom sectors through this policy. One of the salient features of the policy is to make available broadband on demand and use of telecom infrastructure which in turn would enable businesses in urban as well as rural areas to engage in the web-economy and e-commerce for inclusive development.

Mobile Devices as an Instrument of Social Empowerment (e-Governance, m-Governance)

The Policy endeavours at making mobile devices as tools for social empowerment. This will be achieved through enabling participation of citizens in e-governance and m-governance projects in key sectors such as health, education, skill development, employment, governance and banking on mobile devices. Cloud-computing will be also used to enable social networking and participative e-governance. One Nation-Full Mobile Number Portability to be implemented and work towards One Nation Free Roaming.

Mobile devices are not only to be used for communication but also to be used as devices to authenticate proof of identity and facilitate secure financial transactions, multilingual services and other capabilities which will assist in increasing the literacy rate in the country.

Strategies

Broadband Rural Telephony and Universal Service Obligation Fund
The Policy dictates for a robust and secure telecommunication service in the rural and remote areas. In order to bridge the digital divide the Policy also mandates affordable and high quality broadband connectivity and telecom service throughout the nation. This will be achieved through combination of technologies viz., optical fibre, wireless, VSAT and others. Optical fibre networks to be laid down to the village panchayats, using USOF funding. It also aims at high speed broadband access to all the village panchayats by 2014 and access to all villages and habitation by 2020. It also aims at increasing the rural tele-density from 29 to 70 by 2012 and 100 by 2020. With high quality voice, data and multimedia and broadcasting services on converged networks,[1] it is expected to render better service to the user.

The policies formulated with respect to access to broadband are:

Develop an “eco-system for broadband” and also work towards a “right to broadband”. It also endeavours to recognize telecom and broadband service a basic necessity in the field of education and health.
Provide affordable and reliable broadband on demand by 2015, 175 million broadband connections by 2017; 600 million by 2020 at a minimum speed of 2 Mbps download speed and also to make available higher speeds of at least 100 Mbps on demand.
Revise the existing broadband download speed from 256 Kbps to 512 Kbps and 2 Mbps by 2015 and speed up to at least 100 Mbps thereafter. The policy also encourages use of FTTH (fibre to the home) to create a “always connected” society.
Set up an agency, to co-ordinate with different government departments in order to efficiently lay optical fibre cables across the nation and help in rapid expansion of broadband services in the country.
Use broadband along with other government agencies for the implementation of e-governance, e-panchayats MNREGA, NKN, AADHAR, AAKASH tablet. It will also help in facilitating secure financial transactions online.
Stimulate interest with respect to utility of broadband by promoting regional and local content with the help of the Department of Information Technology. This will help in generating investment for All-Internet Protocol (IP) Networks including Next Generation Networks (NGN)

R&D, Manufacturing and Standardization of Telecommunication Equipment

The Policy directives for encouraging R&D are:

Encourage indigenous manufacturing and R&D, entrepreneurship and IPR creation in the field of telecom products and service under the 12th 5 year plan.
Preference to be given to domestically produced telecom products in case of those telecom products which have security implication for the country or which will be put to government use. Moreover, the policy in order to promote indigenous R&D in telecommunication technology will provide for fiscal and financial incentive will be granted for indigenous R&D.
Focus on production and R&D of telecom equipment as well as address the issues of security and strategic concerns. It also aims to focus on a green policy and use of renewable sources of energy in the telecom sector.
Set up a council with experts from sectors of the telecom industry including telecom service providers, telecom manufacturing industry, government, academia and R&D institutions. The functions of the Council would be to (a) forecast on technology change and product development; (b) update the national programme for technology/product development; (c) to act as a nodal group to ensure implementation of the recommendations made for R&D and IPR creation.
Promote collaboration between telecom service providers, manufacturers, R&D centres, academia and other stakeholders for development and introduction of new products in the market which are more suitable for Indian environment and security needs.
Assist entrepreneurs by creating funds and promoting indigenous manufacturing, R&D and intellectual property creation.

The Policy also addresses issues with regards to standards in the telecom sector. The main policy directives for standardization of telecom in India are:

Set up new standards to meet national requirements and participate in the standard making process carried out by international standardization organizations and also contribute in formulation of global standards.
Implement platform neutral services in e-governance and m-governance in the sector of health, education and agriculture. The Policy objective is also to encourage development of mobile phone based on open platform standards.
Mandate to use common platform for interconnection of various networks for non-discriminatory and non-exclusive access.
Create a road-map for aligning technology, demand, standards and regulations for the purpose of promoting competition in the market.
Set up a Telecommunication Standard Development Organisation (TSDO) as an autonomous body to build consensus about standards to meet national requirements including security requirements. The Organisation will also oversee participation of government, industry, R&D centres, service providers and academia in such setting of standards.

In order to promote domestic manufacture of telecom equipments, the Policy seeks to support electronic design and manufacturing clusters for design, development and manufacture of telecommunication equipment. The Policy aims to provide incentive for export of telecom equipment and also give fiscal incentives for domestic manufacturing of telecom equipments under the Modified Special Incentive Package Scheme (M-SIPS). It will also lay down mechanism for testing and certification with respect to conformance, performance, interoperability, health, safety, security, EMF/EMI/EMC (electromagnetic compatibility).

Licensing, Convergence and Value Added Services

The policy regarding licensing:

Simplify the licensing framework in order to facilitate converged high quality services.
Strengthen institutional and legal and regulatory framework and to bring more transparency and efficiency in decision making process and also implement web-based e-governance solution for online application, processing and issuance of licence by Department of Telecommunication.
Convergence of technology, for the purpose of enabling a single network for voice data and video, internet telephony (VoIP), value added services and broadcasting services.
Move towards convergence between telecom, broadcast, IT service, networks, platforms, technologies. It is also imperative to overcome hurdles such as “existing segregation of licensing, registration and regulatory mechanisms in these areas to enhance affordability, increase access, delivery of multiple services and reduce cost.”
Use of fixed mobile convergence in order to optimize the delivery of services to the consumers irrespective of the device or the location.
Support from USOF for telecom services, including converged communication services for providing services in commercially unviable rural and remote areas.

Spectrum Management

The Policy aims at creating a framework for increasing the availability of spectrum for the purpose of telecom services. It also seeks to implement a transparent process for allocation of spectrum as well as ensure availability of spectrum. The Policy wishes to make available additional 300 MHz for IMT (4G) services by 2013 and another 200 MHz by 2020.

The government will also promote efficient use of spectrum and will conduct periodical spectrum usage audit. It will also de-licence un-used and additional frequency bands for public use. It will also conduct periodic audit of spectrum use, to ensure optimum use of spectrum.

The policy directives for spectrum management are:

Liberalise spectrum for the purpose of enabling use of spectrum for providing any service through any technological medium. Such liberalisation policy will also allow spectrum pooling, sharing, and later trading to effect optimum use of spectrum. This will be done through appropriate regulatory framework.
Re-farm spectrum to allot alternate frequency bands to service providers and also to make available spectrum for the introduction of new technologies in the telecom market.
Devise a roadmap for the purpose of making available additional spectrum in the next five years. It also seeks to make available globally harmonised IMT spectrum in 450 MHz, 700 MHz, 1800 MHz, 1910 MHz, 2.1 GHz, 2.3 GHz, 2.5 GHz, 3.5 GHz bands and other bands to be identified by ITU for commercial mobile services.
Provide small chunks of frequency bands for the purpose of research and development indigenous technologies and products.
Optimize spectrum allocation by reviewing the existing geographical unit of allocation of spectrum.
Promote use of white spaces with low power devices, without causing harmful interference to the licensed applications in specific frequency bands by deployment of Software Defined Radios (SDRs), Cognitive Radios (CRs), etc.
Establish Institute of Advanced Radio Spectrum Engineering and Management Studies (IARSEMS) which will carry out policy research in radio spectrum engineering, management/radio monitoring and related aspects.

Quality of Service and Protection of Consumer Interest

The main policy mandate is to further empower TRAI (independent regulator) for the purpose of ensuring that the prescribed performance standards and quality of service parameters are complied with, by the service provides and also provide support to the sector regulator in creating awareness about services, tariff and quality of service. It also seeks to balance the interests of the consumer and the service provider.

The Policy objectives with respect to protection of consumer interests:

Informed consent;
Transparency;
Accountability in quality of service, tariff, usage and;
Strengthen grievance redressal mechanisms

The strategies adopted for ensuring quality of service and protections of consumer interest are:

Formulate code of practices of sales and marketing communication.

Mandate web-based disclosure of area coverage by the telecom service providers.

Establish National Mobile Property Registry to deal with issues of security, theft and other concerns such a reprogramming of mobile handsets.

Undertake legislative measure to include dispute between telecom consumers and service providers within the jurisdiction of consumer forums.

Security

The objective of the policy is to formulate a strategy to address the concerns related to communication security and network security. AADHAR based authentication framework would be crucial in providing service such as m-payment.

The strategy adopted to implement security measures are:

Telecom service providers must take adequate measures; to ensure security of the communication send and received through their networks. The service provider will adopt contemporary network security standards

Telecom service providers must provide communication assistance to law enforcement agencies. Telecom service providers must assist law enforcement agencies within legal framework and also keeping in view the individual privacy and also following international practices to the extent possible for fulfilling national security needs.

Regulatory measures to ensure that safe to connect devices are inducted on to the network. To build national capacity around security standards, security testing, and interception and monitoring capabilities.

[1].Multiple communication service on a single network; See, http://bit.ly/zEA4wa

For more details visit https://cis-india.org/telecom/resources/national-telecom-policy-2012

National Telecom Policy, 1994

snehashish — 2013-03-15T05:51:52Z

The National Telecom Policy, 1994 was formulated for the purpose of opening up the Indian markets for foreign direct investment as well as domestic investment in the telecom sector. The Policy also aimed at providing ‘world class’ quality telecom services and development of telecom services in India. One of the main goals of the 1994 Policy was to increase accessibility to telecom services.

Objectives of the National Telecom Policy, 1994

The main objectives of the 1994 Policy[1]were:

Telecommunication to be accessible to all (telephone on demand)
Universal service (access to basic telecom services for all at a reasonable and affordable price)
‘world standard’ quality of service
Better customer services through efficient complaint redressal systems and dispute resolution mechanisms.
Growth in manufacturing and export of telecom equipment.
Protect the defence and security interest of India.

The target of the National Telecom Policy, 1994 was further revised due to rapid economic growth. The revised targets were:

Telephone to be available on demand by 1997.
All villages in India should have access to basic telephone services by 1997.
In urban area, a PCO should be provided for every 500 persons by 1997.
To make available value added services and to raise telecom services in India to international standard within the 8th Five year Plan (1992-1997), preferably by 1996.

The Status of Telecom Services Prior to Implementation of the National Telecom Policy, 1994

Before the implementation of the policy the telephone density in India was about 0.8 per hundred persons compared to world average of 10 per hundred persons. The telephone density in India was lower than that of other developing countries such as China, Pakistan and Malaysia.

Value Added Services

The sub-sector of value added services was opened for private investment in July, 1992 for the following services:

electronic mail,
voice mail,
data services,
audio text services,
video text services,
video conferencing,
radio paging and
cellular mobile telephone.

In case of services from (i) to (vi), companies registered in India were allowed to operate under a non-exclusive licence. Under the policy, limited number of companies may be granted licence for radio paging and cellular mobile telephone services. Selection of such companies shall be on the basis of a policy and a system of tendering. There were criteria which were applied for selection of companies for grant of licence. The criteria were:

Track record of the company.
Compatibility of the technology.
Usefulness of technology being offered for future development.
Protection of national security interests.
Ability to give best service to the customer at the most competitive cost.
Attractiveness of the commercial terms to the Department of Telecommunication.[2]

Hardware and Technological Aspects

India had already developed that capacity to manufacture necessary telecom equipment. For example, capacity for manufacture of switching equipment had exceeded 1.7 million lines per year in 1993 and was projected to exceed 3 million and the capacity was projected to exceed 3 million lines per year by 1997. The capacity to manufacture telephone instruments was claimed to be more than the requirement. Manufacturing units were also established to build capacity around production of wireless terminal equipment, Multi Access Radio Relay (MARR) for rural communication, optical fibre cables, underground cables, etc.

The Policy also advocated that there should be substantial investment in development of technology related to telecommunication.

Basic Services

The private companies registered in India may also assist the Department of Telecommunication in expanding the telecommunication by providing basic telephone services in rural areas. The Policy stated that such companies have to maintain a balance between urban and rural services and also confirm with the agreed revenue sharing and tariff arrangements.

Method of Implementation under the National Telecom Policy, 1994

The Policy laid down that it has to be implemented with keeping in mind interests of the consumers and there should be suitable arrangements to ensure fair competition.

Outcomes of the National Telecom Policy

In order to implement the NTP, 1994, licences were granted to eight Cellular Mobile Telephone Service (CMTS) operators. Two licences were granted in each of the metropolitan cities. In the second phase of implementation of the policy in December 1995 through a competitive bidding process and more than 14 CMTS licences were issued in 18 state circles and 6 Basic Telephone Service licences were issued in 27 cities and 18 state circles.

The Policy did not produce intended results because the revenue recovered by the cellular and basic operators was less than the expected return. Moreover, the operators were not able to arrange finance to fund their projects.

[1].National Telecom Policy, 1994, available at http://bit.ly/N4dlEk
[2].Para 9, National Telecom Policy, 1994 available at http://bit.ly/N4dlEk

For more details visit https://cis-india.org/telecom/resources/national-telecom-policy-1994

Market Structure in the Telecom Industry

snehashish — 2013-03-15T07:17:12Z

In this unit Snehashish examines the market structure of telecom industry — which include the teledensity, wireless, wireline, and internet services.

Teledensity

Teledensity means number of telephones per hundred people. The current teledensity in India is 78.10. However, there is a large disparity between urban teledensity and rural teledensity. The urban teledensity stands at 169.37 whereas rural teledensity is 38.53 only. The reason for the slow growth in teledensity in the rural areas is that it is less attractive for the telecom service providers to invest. Furthermore, providing service in the remote and rural areas also requires massive investment.


Teledensity in India (Rural, Urban and Cumulative) 2007 – December, 2011
Source: Department of Telecommunication, Annual Report 2011-2012

Public and Private Share in the Market

Annual Growth Rate in the Telecom Industry (1981 to December, 2011)


CAGR: Compounded Annual Growth Rate Source: TRAI, Telecom Sector in India: A Decadal Profile

After the Government of India gave up its monopoly in the telecom sector in 1992 the growth of the telecom industry was slow due to lack of roust policy. However, with the change in the policy and licensing regime in the 1999, it is evident from the above graph that the telecom industry recorded a phenomenal growth. There was 35 per cent growth in the compounded annual growth rate.

Wireless

Market share in the wireless subscription as on February, 2012

	The pie chart clearly shows that currently the private sector dominates the cellular market. However, this was not the case in the beginning. The changes in the market structure were due to the changes in telecom policy in 1999. The growth rate of number of wireless subscribers from 1996-2011 in the graph below, clearly depicts the growth in wireless subscribers after the change in policy in 1999. Currently, the three main players in the mobile services sector are Vodafone, Reliance and Bharti.

Wireline

Market share in the wireline subscription as on December, 2011

In the basic telecom services or wireline services the incumbent — Bharat Sanchar Nigam Limited (BSNL) has the majority share in the market. This is due to the expanse of the infrastructure available to the incumbent, and its ability to provide basic telecom services in the rural and remote areas. The private wireline service providers do not have the capital to invest in building such infrastructure and there is no profit in such capital investment as well. Therefore, the private players mainly concentrate in urban areas where they can earn more revenue.

Internet Services

Market share of ISPs as on December, 2011


Source: TRAI, Telecom Sector in India: A Decadal Profile

The broadband services came into forefront after the implementation of the Broadband Policy, 2004. It laid down that the minimum speed for a broadband connection has to be 256 kilo bits per second. This has been revised to 512 kilo bits per second under the National Telecom Policy, 2012. In India, 59.6 per cent internet subscription is broadband subscription.

Currently, the main technology used for broadband access is digital subscriber line (DSL). About 85.1 per cent of the broadband subscriptions are via DSL technology. While the other technologies such as fibre, leased line, wireless, ethernet, cable modem covers only 14.9 per cent of the market. The main internet service provider (ISP) in the market is BSNL which has a share of 54.97 per cent.

For more details visit https://cis-india.org/telecom/resources/market-structure-in-telecom-industry

List of Chairman and Members of CRAC

snehashish — 2012-12-02T06:22:25Z

Notification on the constitution of the "Cyber Regulation Advisory Committee"

LIST OF CHAIRMAN AND MEMBERS OF CYBER REGULATION ADVISORY COMMITTEE

NOTIFICATION[1]

17th October, 2000

In exercise of the powers conferred by section 88 of the Information Technology Act, 2000 (21 of 2000) the Central Government hereby constitute the “Cyber Regulation Advisory Committee”, consisting of the following, namely: –

1. [2][Minister, Communication and Information Technology] - Chairman

2. Secretary, Legislative Department - Member

3. Secretary, [3][Ministry of Communication and Information Technology, Department of Information Technology] - Member

4. Secretary, Department of Telecommunications - Member

5. Finance Secretary - Member

6. Secretary, Ministry of Defence - Member

7. Secretary, Ministry of Home Affairs - Member

8. Secretary, Ministry of Commerce - Member

9. Deputy Governor, Reserve Bank of India - Member

10. Shri T.K. Vishwanathan, Presently Member Secretary, Law Commission - Member [sic]

11. President, NASSCOM - Member

12. President, Internet Service Provider Association - Member

13. Director, Central Bureau of Investigation - Member

14. Controller of Certifying Authority - Member

15. Information Technology Secretary by rotation from the States - Member

16. Director General of Police by rotation from the States - Member

17. Director, IIT by rotation from the IITs - Member

18. Representative of CII - Member

19. Representative of FICCI - Member

20. Representative of ASSOCHAM - Member

21. [4][Scientist “6”, Department of Information Technology] - Member Secretary

2. Travelling Allowance/Dear Allowance, as per the Central Government rules, for non-official members shall be borne by the Ministry of Communication and Information Technology, Department of Information Technology.

3. The Committee may co-opt any person as member based on specific meetings

_______________________

[1] Vide G.S.R. 790(E), dated 17th October, 2000

[2] Subs. by G.S.R. 839(E), dated 23rd December, 2004 for “Minister, Information Technology”.

[3] Subs. by G.S.R. 839(E), dated 23rd December, 2004 for “Minister, Information Technology”.

[4] Subs. by G.S.R. 839(E), dated 23rd December, 2004 for “Senior Director, Ministry of Information Technology”

For more details visit https://cis-india.org/internet-governance/resources/chairman-and-members-of-crac

Licensing Framework for Telecom: A Historical Overview

snehashish — 2013-03-15T07:13:56Z

In this unit, Snehashish Ghosh tells us about licence, and lists out the major changes in the telecom licensing schemes since 1991.

Before analyzing the telecom licensing framework in India, it is imperative that one must examine what is a liceince. Licence issued by the government is an authority, given to a person upon certain conditions to do something which would have been illegal or wrongful otherwise. For example, a driver’s licence issued by the government, gives the authority to a person to drive a motor vehicle. There are three main types of licence fee which the government charges: (i) initial licence fee, which generally is non-refundable, (ii) annual licence fee, and (iii) additional fee for allocation of spectrum.

Licensing framework has been an integral part of India’s telecommunication law. Under the Indian Telegraph Act, 1885, section 4 gives power to the government to grant licence to any person to establish, maintain or use a telegraph. However, in the telecom sector, the government had complete monopoly until the early 1990s. Since 1992, the government has allowed licensing in the telecom sector. The major changes in the telecom licensing schemes are listed below:

1991: The government allowed private telecom companies to manufacture telecom switches for telephone exchange.

1992: The Department of Telecommunication (DoT) invited bids for licences for cellular service across the four metros. The DoT offered two licences per metro city. The process involved two stages. First stage, technical evaluation of the bidder and the second stage involved financial evaluation of the bidder.

The rejected bidders challenged the selection process on the grounds that it was unclear and arbitrary.[1]The Supreme Court decided that it would not interfere into the government decision making function until and unless they are patently arbitrary and unfair.

The litigation delayed the launch of the cellular mobile services by three years. Finally the first mobile services were launched in Calcutta in the year 1995. It also brought to the fore-front the lack of policy with respect to licensing and regulatory framework for telecommunication.

Licence Fee and Tariff: A minimum licence fee was specified for each metro. The annual licence fee was highest in Bombay. It was set at Rs. 30 million, which was increased to Rs. 240 million by the seventh year, similarly licence fee for Delhi, Calcutta and Madras were set at Rs. 20 million, Rs. 15 million and Rs. 10 million, respectively. However, by the seventh year the licence fee for the three metros were 160 million, 120 million and 80 million, respectively.

The licence fee was revised and the DoT asked the operators to pay Rs. 5000 per subscriber as annual licence. The licence fee was again revised and service operators had to pay Rs. 6,023 per subscriber.

The DoT also placed caps on the rental and tariffs. The service providers could charge a maximum Rs. 156 only as rental. The call tariff was set at a standard rate of Rs. 8.40; off peak was set at half the standard rate and peak rate was double the standard rate. DoT placed a cap on security deposit which had to be paid by the subscriber; it was restricted to Rs. 3000.

The change in the annual licence fee in the four metro cities is illustrated in the table below:

Metros	Bombay	Delhi	Calcutta	Madras
Licensees	BPL Telecom Maxtouch	Bharti Cellular Sterling	Usha Martin Modi Telstra	Skycell RPG Cellular
Annual Licence Fee (Rs million)
Year 1	30	20	15	10
Year 2	60	30	30	20
Year 3	120	80	60	40
Year 4-6*	180	120	90	60
Year 7*	240	160	120	80

*The service operator has to pay either the annual licence fee or Rs. 5000 per subscriber, whichever was higher.

[Source: TRAI, (1999c: 24-25) as cited in Ashok V. Desai, Indian Telecommunication Industry: History, Analysis and Diagnosis, Sage Publication 2006, pp. 77].

May, 1993: The DoT commissioned ICICI to study and prepare a report on the possibility of private participation in the telecommunication sector.

1994: The DoT took a step back, after falling into controversy, in its previous attempt to allow licensing in the telecom sector. However, the Finance Ministry was in the favour of private participation in the telecom sector and it argued that the incumbents need assistance from the private telecom service providers for increasing the tele-density in the country. In order to study the issue, a committee was set up under ICICI. The report finally culminated into the National Telecom Policy, 1994.

The National Telecom Policy, 1994 laid down the following criteria for the entry of private operators:

Track record of the company
Compatibility of the technology
Usefulness of technology being offered for future development
Protection of national security interests
Ability to give best service to the customer at the most competitive cost
Attractiveness of the commercial terms to the Department of Telecommunication[2]

1995: DoT allowed bidding for cellular licences and wireline licences. Spectrum was bundled with the telecom service provider licence. For the implementation of the licensing scheme, the country was divided into 21 circles (excluding four metros) and it was categorized in to circles namely A, B and C on the basis of the potential of the circle to generate revenue. DoT awarded two licences in each circle; one to the state operator and the other to the private operator. The potential service providers in order to be eligible for bidding for licences had to partner up with a foreign company. The foreign shareholder was allowed to hold equity share

Metros: Delhi, Mumbai, Kolkata, Chennai

Cirlce A: Gujarat, Karnataka, Tamil Nadu, Andhra Pradesh, Maharashtra

Circle B: Haryana, Punjab, Kerala, Rajasthan, West Bengal, Uttar Pradesh (West), Madhya Pradesh, Uttar Pradesh (East)

Circle C: Bihar, Northeast, Assam, Orissa, Himachal Pradesh, Jammu & Kashmir

Eligibility for the private companies to bid for the licence: (i) financial net worth of the company making the bid and (ii) experience of the company in providing telecom services. The minimum net worth to qualify for bidding was set by DoT. A service provider in order to be eligible for bidding should have a minimum paid up capital of Rs. 1 billion and net worth of Rs. 10 billion. The auction of the licences was carried out through a first price sealed bid auction.[3] Two licences were awarded in each circle in order to avoid monopoly of service provider in a circle.

Licence fee and Tariff: A total of 34 licences were issued. The term of the licence was fixed at ten years which was revised to 15 years. The service providers had to pay an annual licence fee which was agreed upon during the auction of the licence. The annual licence fee was based on the projection of revenue generation. There was no allocation spectrum but the government levied charges for spectrum usage as well. The tariffs were same as for the metro licences.

Wire line Licences: DoT also issued six licences for basic telephone services.

Financial Breakdown: After the issue of cellular licences in 1995, six of the service providers were in default due to non-payment of licence fee by the early 1997. By the year 1998 the number of defaulters increased to eight.

The Bureau of Industry Cost and Prices (BICP) was requested to look into the matter. The BICP after investigation reported that 13 operators were running in loss. According to the BICP report, the telecom service providers were running in loss because of the high licence fee, interconnection charges and spectrum usage charges imposed by the DoT. One of the recommendations of the BICP was that the rental should be increased from Rs. 156 to Rs. 600. This would decrease the demand for mobile phones but allow service providers to sustain their business.

ICICI conducted a study, as well. The study revealed that 17 per cent of the consumers had not used their cell phone at all and 37 per cent of the subscriber had bills below Rs. 500 a month. This clearly showed that projection of revenue by the DoT was faulty.

Reasons for the Financial Breakdown (TRAI Report, 1999)

Later, in 1999 the TRAI studied the cellular operators. The study showed that main reasons for the financial failure of the telecom service provider were:

Heavy capital investment for setting up infrastructure, which was underutilized
Number of subscriber lower than projected
The average revenue per user (ARPU) was lower than the costs incurred by the service provider. The ARPU in circles A, B and C were Rs. 1100, Rs. 800 and Rs. 600 respectively.
Significant amount of the finances of the service provider were used to pay licence fees.
Operational charges also took a toll on the service providers.

None of the studies took into consideration that the industry was oligopolistic in nature and the incumbents flooded the market with basic telephone connections.[4] The obvious conclusion was that the revenue generated by the cellular operators was not able to cover their costs.

The financial failure of the telecom operator under the 1994 policy led to the implementation of New Telecom Policy, 1999.

1998: Internet services were rolled out in 1995 by Videsh Sanchar Nigam Limited (VSNL). In November, 1998, the government opened it up to the private sectors.

1999: The New Telecom Policy, 1999 allowed the migration of the licensees from a Fixed Licence Fee Regime to a Revenue Arrangement Scheme (w.e.f. 1/08/1999). Under the new scheme a licence fees was collected as proportional tax on the service provider’s revenue. Previously, there were two operators in each circle and the 1999 Policy allowed the government as the third operator in the circle.

The 1999 Policy issued licences for the following services:

Cellular Mobile Service Providers (CMSPs);
Fixed Service Providers (FSPs) and Cable Service Providers, collectively referred as ‘Access Providers’;
Radio Paging Service Providers;
Public Mobile Radio Trunking Service Providers;
National Long Distance Operators;
International Long Distance Operators;
Global Mobile Personal Communication by Satellite (GMPCS) Service Providers;
V-SAT based Service Providers

Licence and Tariff: Licence holders under the 1994 policy migrated to the new licensing regime, under the New Telecom Policy, 1999. In order to shift from the fixed licence fee regime to revenue arrangement scheme the service providers had to pay previous arrears in licence fee on a pro-rata basis till July 31, 1999. Under the new adjusted gross revenue, the service providers had to pay 15 per cent of their adjusted gross revenue.[5] The circle operators also had to pay spectrum usage charge.

TRAI regulated the tariff under the New Telecom Policy, 1999. It brought down the call tariff from the peak rate of 16.80 to Rs. 6 per minute with a pulse of 20 seconds. This allowed the consumers to make calls for a minimum of Rs. 2.00. TRAI also put a cap of Rs. 600 on the rental charges. After notification of tariffs in the year 1999, TRAI examined the accounts of the service providers and found out that under the 1999 licensing regime there was healthy competition and the service providers were providing mobiles services at price, below the TRAI ceilings.

Tariffs	DoT ceiling on tariffs under National Telecom Policy, 1994 (in rupees)	TRAI ceilings on tariffs under the New Telecom Policy, 1999 (in rupees)	Industry rates under the New Telecom Policy (in rupees) – average rates
Call Rates (peak-time)	16.80 per minute	6.00 per minute	2.03 per minutes
Rental	156	600	195
Security	3000	-NA-	-NA-

2000: The government issued licence for national long distance telephony (NLDO). There was no restriction on the number of operators to whom the licence was granted. The licence was issued for a period of 20 years on a non-exclusive basis and could be extended upto a period of 10 years once. The entry fee for NLDO licence is Rs. 2.5 crore.[6] There are 32 companies other than BSNL, the incumbent, which have been granted licence for national long distance services. This has facilitated healthy competition in the market.

2001: Licence for basic telephone services using wireless in local loop (WLL). This was the first time that the first-come-first-serve scheme was implemented for issuing licences.

2001: A bid for cellular licence for a fourth operator was introduced in January 2001. The auction was carried out in three stages. The fourth licensee had to pay a sum of 17 per cent of the revenue in addition to the entry fees.

2002: DoT issued licence to private operators for International Long Distance Telephony (ILD) services. The entry fee for ILD licence is 2.5 crores.[7] The licence was valid for a term of 30 years. Currently the annual licence fee on ILD service is 7 per cent on the adjusted gross revenue. However, DoT has revised it to a uniform rate of 8 per cent on the adjusted gross revenue from the year 2013-2014.[8]

2003: Introduction of calling party pays (CPP). Under CPP, no charges can be levied on receiving a call in the home circle.

2003: Unified Access Service Licensing (UASL) regime was introduced by DoT on the recommendation of the TRAI. The UASL “permitted an access service provider to offer both fixed and/or mobile services under the same licence, using any technology.”[9]

The country was divided into 23 service areas, 19 telecom circles and 4 metro circles for the purpose of implementing unified access services (UAS).

TRAI announced the guidelines for migration to the UASL regime on November 11, 2003.[10] An operator under the UASL was allowed to provide for free within its own area of operation, service which cover collection, carriage, transmission and delivery of voice and/or non-voice messages over licensee’s network by deploying circuit and/or packet switched equipment.

Licence Fees: The licence fee for the service operator was two-fold. Fee was charged for migration from Cellular Mobile Telephone Service (CMTS) licence to UASL. This fee was equal to the amount paid by the fourth licensee introduced in the market in the year 2001. Apart from the migration fee, an annual licence fee is also levied according to the circle in which the service provider is operating. The annual licence fee is 10 per cent, 8 per cent and 6 per cent on the adjusted gross revenue in the circles A, B and C respectively.

2007: DoT allowed issuing of licences for operating on dual technologies that is CDMA and GSM. DoT also allowed single licence to Internet Service Providers (ISP) but restriction was put in VoIP.

2011: The government introduced mobile number portability (MNP) which injected further competition in the telecom market. Under the MNP, a cellular subscriber can avail services of another service provider while keeping the same mobile number. Previously, change of mobile number used to be the biggest deterrent to change service provider, this was done away with the MNP scheme.

2012: National Telecom Policy, 2012 introduced Unified Licensing Regime. Under the regime, service operators can provide converged services. The spectrum has been delinked from the licence.

[1]. Tata Cellular v. Union of India, 1994 SCC (6) 651.
[2]. Para 9, National Telecom Policy, 1994 available at http://bit.ly/N4dlEk
[3]. In first price sealed bid auction, the bids are kept secret; the bids are then compared and the highest bidder wins and pays a sum equal to the bid amount.
[4]. Ashok V. Desai, India’s Telecommunication Industry: History, Analysis, Diagnosis, Sage Publication, 2006, pp. 83-84.
[5]. A licensee's adjusted gross revenue usually refers to the total amount of its gross revenue (including all charges, sees, sale proceeds, and miscellaneous revenue) minus interconnection and roaming charges paid to other licensees and service taxes paid to rhe government. See Model Cellular License, Schedule-II, at paragraph 20.1.
[6]. Department of Telecommunication, Annual Report 2011-12 pp. 18
[7]. Id. At pp. 19.
[8]. Notification no. 10-54/2010-CS-11 dated 28^th June, 2012 available at http://bit.ly/Q5nI5O
[9]. Recommendations on Spectrum Management and Licensing Frampework, TRAI, 11th May, 2010.
[10].Unified Access Services available at http://bit.ly/lOQZW7

For more details visit https://cis-india.org/telecom/resources/licensing-framework-for-telecom

Letter requesting public consultation on position of GoI at WGEC

snehashish — 2014-01-08T18:36:09Z

Snehashish Ghosh on behalf of the Centre for Internet and Society sent a letter to the Ministry of Communication and Information Technology, requesting for a public consultation on India's position at the Working Group on Enhanced Cooperation (WGEC).

January 3, 2014

Shri Kapil Sibal,
Honourable Minister for Communication and Information Technology
Ministry of Communication and Information Technology,
Government of India

Subject: Public consultation at the domestic level on the position of Government of India at WGEC

Dear Sir,

We at the Centre for Internet and Society, Bangalore (“CIS”) commend, Government of India’s participation at the Working Group on Enhanced Cooperation (WGEC), working under the aegis of United Nations Commission on Science and Technology and Development (CSTD). The Working Group was set up in pursuance of General Assembly Resolution A/Res/67/195, to identify a shared understanding of enhanced cooperation on public policy issues pertaining to the internet. The WGEC after its first meeting circulated a questionnaire to collect the views and positions of the stakeholders on various aspects of enhanced cooperation. The Government of India responded to the questionnaire and also represented its position at the second meeting of WGEC held in Geneva from November 6-8, 2013. We would like the Government to take cognizance of representations from concerned stakeholders before finalizing its position.

In this regard, we would like to note, Government of India’s commitment towards multi-stakeholder approach in formulation of public policy pertaining to the internet. At the Internet Governance Forum, 2012 held in Baku, the Honourable Minister for Communications and Information Technology noted that the “issues of public policy related to the internet have to be dealt with, by adopting a multi-stakeholder, democratic and transparent approach”. Furthermore, the Government of India’s stand at the World Conference on International Telecommunications, 2012 in Dubai supported and recognized the multi-stakeholder nature of the internet.

However, it seems that the Government has digressed from its previous stand on internet governance whereas it fell short of having a multi-stakeholder public consultation on India’s position on enhanced cooperation at the WGEC. We earnestly urge you to hold domestic public consultation before the next WGEC meeting.

Thank you.
Sincerely,

Snehashish Ghosh,
Policy Associate,
Centre for Internet and Society, Bangalore

Copied to: Dr. Ajay Kumar, Joint Secretary, DietY, MOCIT and Shri. J. Satyanarayana, Secretary, DietY, MOCIT

Download a copy of the letter here

For more details visit https://cis-india.org/internet-governance/blog/public-consultation-at-domestic-level-on-position-of-goi-at-wgec

Indian Telegraph Act, 1885

snehashish — 2013-03-15T06:13:26Z

The main object of the Telegraph Act was to give power to the Government to install telegraph lines on private as well as public property.

The Telegraph Act since then gone through numerous amendments in order to accommodate new communication technologies. This is evident from the current definition of ‘telegraph’ under Telegraph Act. It defines ‘telegraph’ as:“

"any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means.

Explanation - "Radio waves" or "Hertzian waves" means electro-magnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide."

Framework of the Act

The Indian Telegraph Act, 1885 (Telegraph Act) contains six parts. Part I deals with definitions of key words used in the Telegraph Act. Part II grants government the exclusive privilege with respect to telegraph. Part II also gives power to the issue licence to private operators to offer telegraph services. Part IIA was inserted in the Telegraph Act by the Indian Telegraph (Amendment) Act, 2003. It deals with setting up of the Universal Service Obligation Fund (USOF) for the purpose of meeting universal service obligation. (For further details see the Module on USOF). Part III deals with procedures and guidelines to be followed; for installing and maintaining communication equipments. It also lays down guidelines for setting up communication devices in private property and also the procedure for resolution of any dispute which may arise between the service provider and the owner of the private property. Part IV lays down the offences and penalties with respect to unauthorized use of communication or telegraph services. Part V deals with other supplementary provisions.

Exclusive Privilege of the Government with respect to Telegraphs

Section 4 of the Act deals with exclusive privilege of the government to establish, maintain and use telegraphs. It also provides for the government to grant licence to establish, maintain or work a telegraph. The government may grant such licence on certain conditions and for a licence fee.

Section 5 of the Telegraph Act is commonly known as the wire-tapping clause. It gives power to the government to take possession of any licensed telegraphs in case of a public emergency or in the interest of public safety. It can also order interception of communication in the interests of the sovereignty and integrity of India, the security of the state, friendly relation with foreign states or public order or for preventing incitement to the commission of an offence. However, the government has to follow the procedure established by law for issuing such order.

The procedures and guidelines for lawful interception was laid down in the case of People’s Union for Civil Liberties v. Union of India.[1] In this case the Supreme Court of India ruled that telephone tapping is a serious invasion upon an individual’s privacy. However, lawful interception can be carried out under certain circumstances mentioned in the wiretapping provision.[2] This kind of law interception has to be carried in conformity with certain guidelines which will act as a check on indiscriminate wire-tapping by the law enforcement agencies. It also directed the government to make rules and procedures for carrying out lawful interception of communication. In addition to that it also laid down the basic guidelines for such interception. The main guidelines are:

An order for law interception can only be made by the Home Secretary to the Government of India and home secretaries of state governments. In urgent situations the power may be delegated to an officer of the Home Department of Government of India and state governments and such officer should not be below the rank of joint secretary.
A copy of the order has to be sent to the review committee within one week of issuance of such order.
The authority which issues the order should also record the following information:
- the intercepted communications;
- the extent to which the material is disclosed;
- the number of persons and their identity to whom any of the material is disclosed;
- the extent to which the material is copied; and
- the number of copies made of any of the materials.
The intercepted material can be used only for purposes mentioned under the wire-tapping clause.
The interception will be valid for two month unless it is renewed. However, the total period of interception should not exceed six months.

The government also has the power to notify rates for transmission of messages to countries outside India. While notifying such rates the government must take into consideration: (i) the rates which are applicable at the time; (ii) foreign exchange rates at the time; (iii) rates applicable for transmission of message with India, at the time and (iv) such other circumstance that the Central Government may think fit to be considered.

Section 7 of the Telegraph Act vests with the government the power to make rules for the conduct of telegraphs.

The government has the power to make rule with regard to following issues:

Rates and other conditions and restrictions subject to which messages will be transmitted within India.

Precautions to be taken to prevent improper interception or disclosure of message

Conduct regarding telegram

Conduct and charges regarding use of telegraph lines[3]

Central Government may impose fine if there is any breach of rules made by it under the Telegraph Act. It may also impose fine upon licensees’ if they are found to be in violation of the rules laid down by the Central Government under the Telegraph Act. The Central Government may also revoke any licence granted under the Telegraph Act, in case of breach of any condition or default of payment with respect to the licence.

Section 9 deals with government liability with respect to loss or damage. The government does not take any responsibility for any loss or damage caused by telegraph officer fails in performing his duties. However, such telegraph officer can be held liable if acts negligently, maliciously or fraudulently.

Universal Service Obligation Fund (USOF)

USOF is established under Section 9A of the Act. The USOF is under the control of the Central Government under the Act. Section 9D deals with administration and utilisation of such funds. (For further details please refer to the module on USOF).

Power of the Government to place telegraph lines and posts

The telegraph authority has to follow certain procedure for taking possession of land for installing and maintaining telegraph line and posts. The telegraph authority# under section 10 of the Telegraph Act has the power to place, maintain telegraph line on or under or over any immovable property. The telegraph authority has limited powers with respect to installation of telegraph lines and posts. It can only take possession of land for the purpose of installing and maintaining telegraph lines and posts. The telegraph authority will only have the right to use the property for purposes specific to installation and maintenance of telegraph poles and lines. The telegraph authority while installing communication equipment should try to do minimum damage to the property. It will be liable to pay adequate compensation to all the persons who have a stake in such property. The Telegraph Act also gives power to the telegraph authority to enter on property for the purpose of repairing or removing telegraph lines or posts.

Sections 12-15 are the procedure applicable to take possession of property vested in or under the control of or management of local authorities. The telegraph authority has to take permission and pay any expenses for setting up communication equipment on property under the control of a local authority. The local authority may also ask the telegraph authority to remove any telegraph lines or post if it finds it necessary to do so. Any dispute between telegraph authority and local authority will be decided by an officer appointed by the Central Government.

Sections 16 and 17 are applicable to property other any property owned, controlled or managed by any local authority. Sections 18, 19, 19A and 19B are applicable to all kinds of property. Section 18 deals with procedure for removing trees which are interrupting telegraphic communication. Section 19 deals with lines and posts before the passing of this Act. Section 19A states that any person who has legal right over the property where communication equipment is install in accordance with the procedure under this Act has to give notice to the telegraph authority in writing, if such persons act is likely to interfere with telegraph communication or damage telegraph equipment. Section 19B allows the Central Government to confer certain powers of the telegraph authority upon the licensee.

Part IV: Penalties

Sections 20 to 32 deal with offences and penalties under the Telegraph

Offence	Ingredients of the Offence	Penalty/Fine
S.20: Establishing, maintaining or working unauthorised telegraph	any person: establishes, maintains or works a telegraph within India without proper licence or authorization from the government	In case of wireless telegraph: Imprisonment which may extend to 3 years, or with fine, or with both Any other case: Fine which may extend up to Rs. 1000 Offences under this section with respect to wireless telegraph is bailable and non-cognizable
S.20A: Breach of condition of licence	If a licensee is held to be in breach of any condition contained in license.	Fine which may extend to Rs. 1000. Further fine of Rs. 500 per week for the duration the licensee is in violation of the licence conditions.
S.21: Using unauthorized telegraph	If any person, knowing or having reason to believe that a telegraph has been established or is maintained or worked in contravention of this Act, transmits or receives any message by such telegraph, or performs any service incidental thereto, or delivers any message for transmission by such telegraph or accepts delivery of any message sent thereby	Fine which may extend to fifty rupees
S.22: Opposing establishment of telegraphs on railway land	If a Railway Company, or an officer of a Railway Company, neglects or refuses to comply with the provision which gives power to the Central Government to establish telegraph on land of Railway Company	Fine which may extend to Rs. 1000 for every day during which the neglect or refusal continues.
S.23: Intrusion into signal-room, trespass in telegraph office or obstruction	If any person without permission of -competent authority, enters the signal-room of a telegraph office of the government, or of a person licensed under this Act, or enters a fenced enclosure round such a telegraph office in contravention of any rule or notice not to do so, or refuses to quit such room or enclosure on being requested to do so by any officer or servant employed therein, or wilfully obstructs or impedes any such officer or servant in the performance of his duty,	Fine which may extend to Rs. 500.
S.24: Unlawfully attempting to learn contents of messages	If any person does any of the acts mentioned in section 23 with the intention of unlawfully learning the contents of any message, or of committing any offence punishable under this Act	Imprisonment for a term which may extend to 1 year in addition to the fine with which he is punishable under section 23 i.e. fine upto Rs. 500
S. 25: Intentionally damaging or tampering with telegraphs	If any person intending to prevent or obstruct the transmission or delivery of any message, or to intercept or to acquaint himself with the contents of any message, or to commit mischief, damages, removes, tampers with or touches any battery, machinery, telegraph line, post or other thing whatever, being part of or used in or about any telegraph or in the working thereof,	Imprisonment for a term which may extend to 3 years, or with fine or with both.
S.25A: Injury to or interference with a telegraph line or post.	If, in any case not provided for by section 25, any person deals with any property and thereby wilfully or negligently damages any telegraph line or post duly placed on such property in accordance with the provisions of this Act Exception: the provisions of this section shall not apply where such damage or interruption is caused by a person dealing with any property in the legal exercise of a right if he has complied with the provisions of section 19A (1).]	Expenses (if any) as may be incurred in making good such damage, and shall also, if the telegraphic communication is by reason of the damage so caused interrupted, be punishable with a fine which may extend to Rs. 1000.
S.26: Telegraph officer or other making away with or altering , or unlawfully intercepting or disclosing, messages, or divulging purport of signals	If any telegraph officer, or any person, who is not a telegraph officer but has official duties at any telegraph office: willfully, conceals, makes away with or alters any message which he has received for transmission or delivery, or willfully, and otherwise than in obedience to an order of the Central Government or of a State Government, or of an officer specially authorized [by the Central or a State Government] to make the order, omits to transmit, or intercepts or detains, any message or any part thereof, or discloses the contents or any part the contents of any message, to any person not entitled to receive the same, or divulges the purport of any telegraphic signal to any person not entitled to become acquainted with the same, Except in pursuance of his official duty or in obedience to the direction of a competent Court does such an act.	Imprisonment for a term which may extend to three years, or with fine, or with both.
S.27: Telegraph officer fraudulently sending messages without payment.	If any telegraph officer transmits by telegraph any message on which the charge prescribed by the Central Government, or by a person licensed under this Act, as the case may be, has not been paid, intending thereby to defraud the Central Government, or that person.	Imprisonment for a term which may extend to 3 years, or with fine, or with both.
S.28: Misconduct	If any telegraph officer, or any person not being a telegraph officer but having official duties connected with any office which is used as a telegraph office is guilty of any act of drunkenness, carelessness of other misconduct whereby the correct transmission or the delivery of any message is impeded or delayed or if telegraph officer loiters or delays in the transmission or delivery of any message.	Imprisonment for a term which may extend to 3 months, or with fine which may extend to Rs. 1000, or with both
S.29A: Penalty	If any person, without due authority, - makes or issues any fake or forged document which is believed to be issued by, or under the authority of, the Director-General of [Posts and Telegraphs], or forged or fake stamp or mark of any Telegraph Office under the Director General of [Posts and Telegraph]	Fine which may extend to Rs. 50
S.30: Retaining a message delivered by mistake	If any person fraudulently retains, or conceals removes holds without any reason any message which ought to have been delivered to some other person, or, being required by a telegraph officer to deliver up any such message, neglects of refuses to do so	Imprisonment for a term which may extend to 2 years, or with fine, or with both.

Section 31 deals with bribery and section 32 states that, “whoever attempts to commit any offence punishable under this Act shall be punished with the punishment herein provided for the offence.

Part V: Supplementary Provisions

Section 33 deals with the power of the State Government to employ additional police force in place where mischief to telegraph is repeatedly committed.

[1].(1997) 1 SCC 318
[2].Section 5(2), Indian Telegraph Act.
[3].Section 3(4), Telegraph Act, 1885 – “telegraph line” means a wire or wires used for the purpose of a telegraph, with any casing, coating, tube or pipe enclosing the same, and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same.
[4].Section 3(6), Telegraph Act.

For more details visit https://cis-india.org/telecom/resources/indian-telegraph-act

Implementation of the order by intermediaries

snehashish — 2012-09-25T06:54:10Z

For more details visit https://cis-india.org/internet-governance/chart_12.png

Government Policy and Guidelines

snehashish — 2013-03-15T06:27:26Z

In this unit Snehashish dwells upon the four main policy guidelines that were formulated by the Government of India.

The above were the four main telecom policies formulated by the government.

One of the main functions of DoT is to issue guidelines with respect to issuing of licence, allocation of spectrum, interconnection, etc. These guidelines operate as additional conditions, laid down by DoT with respect to conduct and functioning of telecom operators. For example, the DoT issued guideline for radiation standards in respect of electromagnetic radiations (EMR) for mobile towers, which came into effect on September 1, 2012.

The DoT has issued numerous guidelines across the years. However, it is important to discuss the DoT guidelines with respect to issuance of telecom service licences.

Basic Telephone Services Licences (BTS)
Cellular Mobile Telephone Service Licence (CMTS)
Unified Access Service Licence (UASL)
National Long Distance (NLD) and
International Long Distance Licence (ILD)

Guidelines on issuing of Basic Telephone Services

DoT issued guideline for issuing of BTS licences in January, 2001. The key features of the guidelines are:

The applicant must be an Indian company. There was no restriction on the number of BTS licensees in a circle. The applicants were also required to have a minimum amount of paid up equity capital. This varied from circle to circle. There was a cap of 49 per cent foreign equity on companies applying for the BTS licence
BTS licences were issued for a period of 20 years on a non-exclusive basis
The licences had to pay an entry fee before the grant of the licence. Consequently, the basic telecom service operators had to pay an annual licence fee based on their annual gross revenue
The basic telecom service operators also had to submit two bank guarantee as an assurance to meet the contractual and roll out obligation under the BTS licence
The Guideline also laid down that the license holders can also provide limited mobility services, by using the spectrum allocated to them for last mile delivery. However, service operators provided limited mobility services had to pay additional 2 per cent fee.
The Guidelines declared that a CMTS licensee can also provide fixed services using GSM networks within their service area. *This was done to satisfy cellular operators who were protesting against permission given to the basic telephone operators to provide limited mobility services.
The basic operators could carry intra-circle long distance traffic. However, the operators had to provide the subscribers, the option to choose their own long distance carriers. For this purpose, BTS licensee could enter into an arrangement with the national long distance licensee.
Basic operators were required to make their own arrangements for the installation of infrastructure, network equipment and, right of way. They were also allowed to enter into agreements related to interconnection with other licensee in other service areas. The terms and conditions of such interconnectivity agreement were subject to TRAI regulations and directions.

Guidelines on issuing of Cellular Mobile Telephone Service Licences

The DoT issued Guidelines for CMTS licences along with guidelines for the issuing of the basic telecom licences. These two sets of guidelines are generally similar to each other but they vary in certain issues.

In the light of the criticism of the previous licensing policy, the DoT guidelines on issuing CMTS licence proposed “informed ascending bidding process”[1] for auctioning of CMTS licence.
The CMTS licence was issued for a period of 20 years on a non-exclusive basis, extendable by 10 years.
The licensee can transfer; assign the licence only with the permission of the DoT, the licensor.
The prospective cellular operator had to submit roll-out plans and financial arrangements with the application.
The licence period was set at 20 years, extendable by another 10 years.
The winning bidder had to pay an entry fee. They also had to pay an annual fee which is a percentage of the annual gross revenue.
The cellular operator also had to pay an additional sum for spectrum.
The cellular operator, were given freedom to use any kind of network equipment as long as they satisfied certain international and domestic standards.
The cellular operators were allowed to enter into any interconnection arrangements subject to TRAI regulations.
The guideline also laid down that cellular operators will fully co-operate with law enforcement and government agencies in providing access to their infrastructure.
The licensees have to make their own arrangement for installing infrastructure and equipment and for right of way.

Guidelines for issuing Unified Access Service Licences

The UASL Guidelines were issued in November, 2003. They were consistent with the TRAI recommendations. Option was given to the existing licensees to continue under their basic telecom and cellular mobile telecom licences or migrate to the new unified access service licence regime. The main highlights of the Guidelines on issuing of UASL were:

Cellular licensees can offer limited mobility service within their short distance coverage areas.
Basic telecom service operators had to pay an entry fee for the UASL which was equal to the entry fee paid by the fourth cellular operator for the specific service area or the entry fee paid by the basic telecom provider in that circle, whichever is higher.
No additional entry fee had to be paid by the cellular mobile service providers.
The basic telecom service operator, who choose not to completely migrate to full mobility regime may pay additional licence fee for providing services in wireless in local loop (WLL). However, such service will be restricted to the short distance charging areas.
There was no additional spectrum allotted to the licensee for migrating to the UASL regime.
The unified access service providers can use any technology without any restrictions.

Additional Entry fee to be paid by the existing Basic Service Operators for migration to Unified Access Service License[2]

S.No.	Name of the operator	Service Area of the basic service operator (BSO)	Date of signing of licence agreements	Entry fee paid by BSO (in crores)	Entry fee paid by 4^th cellular operator(in crores)	Additional entry fee to be paid for migration to UASL(in crores)
1.	Reliance Infocomm Ltd.	Rajasthan	20.7.2001	20	32.25	12.25
		UP(East)	20.7.2001	15	45.25	30.25
		Maharashtra	20.7.2001		189+203.66*
				115	392.66	277.66
		Karnataka	20.7.2001	35	206.83	171.83
		Punjab	20.7.2001	20	151.75	131.75
		Andhra Pradesh	20.7.2001	35	103.01	68.01
		Haryana	20.7.2001	10	21.46	11.46
		Kerala	20.7.2001	20	40.54	20.54
		Uttar Pradesh (West)	20.7.2001	15	30.55	15.55
		West Bengal	20.7.2001		0+78.01*
				25	78.01	53.01
		Madhya Pradesh	20.7.2001	20	17.4501	0
		Bihar	20.7.2001	10
		Himachal Pradesh	20.7.2001	2	1.1	0
		Orissa	20.7.2001	5
		Tamil Nadu	26.9.2001		79+154*
				50	233	183
		Delhi	20.7.2001	50	170.7	120.7
		Andaman & Nicobar **	20.7.2001	1		0
2.	RTL	Gujarat	18.3.1997	179.0859030	109.01	0
3.	Tata Teleservices Ltd.	Gujarat	31.8.2001	40	109.01	69.01
		Karnataka	31.8.2001	35	206.83	171.83
		Andhra Pradesh	4.11.1997	161.47(old)	103.01	0
		Tamil Nadu	31.8.2001		79+154*
				50	233	183
		Delhi	31.8.2001	50	170.7	120.7
4.	TTL (Mah.) Ltd.	Maharashtra	31.8.2001		189+203.66*	-
5.	Bharti Telenet Ltd.	Karnataka	29.10.2001	35	206.83	171.83
		Madhya Pradesh	28.2.1997	35.33 (old)	17.4501	0
		Tamil Nadu	29.10.2001	50	79+154*
					233	183
		Delhi	29.10.2001	50	170.7	120.7
6.	Shyam Telelink	Rajasthan	4.3.1998	29.29(old)	32.25	2.96
7.	HFCL Infotel Ltd.	Punjab	7.11.1997	177.59(old)	151.75	0

Guidelines on issuing of National Long Distance (NLD) Services Licence

The DoT issued guidelines for NLD operations along with the licences. The main aspects of the Guidelines are:

Unlimited entry for carrying inter-circle and intra-circle calls
Total foreign equity of the operator should not exceed 74 per cent.
Private operators had to enter into an agreement with fixed service providers with in a circle for traffic between long distance and short distance charging centres
A timeframe of seven years was set for rolling out services. This timeframe was divided into four phases. If in any of the phases the operator failed to achieve its network coverage target then it would result in encashment and forfeiture of the bank guarantee of that phase
Private operators had to pay an entry fee of 25 million and a financial bank guarantee of Rs. 200 million.
Under the revenue sharing agreement, the DoT would charge maximum 6 per cent revenue generated by the private operator.
Private operators were allowed to set up landing facilities for accessing submarine cables and make use of available excess bandwidth.

Guidelines on issuing of International Long Distance (ILD) Services licences

The DoT issued new guidelines for ILD licences in December, 2005. This was done to implement licence simplification measures and also to allow higher foreign investment. The key features of the Guidelines were:

The ILD service, under the Guidelines was defined as network carriage or bearer service which allows NLD licensees international connectivity to foreign networks
The ILD service provider was allowed to provide all kinds of bearer services from an integrated platform. However, a separate licence was required for satellite and global mobile personal communication services.
The terms for the license: (i) the applicant must be an Indian company; (ii) the company must have net-worth and paid up capital of 2.5 crores; (ii) the total foreign equity should not exceed 74 per cent
The ILD licence was issued for a period of 20 year on a non-exclusive basis, and it would be automatically renewed for another term of five year subject to satisfactory performance.
The entry fee for the ILD licence was Rs. 2.5 crores and an unconditional bank guarantee of the same amount has to be submitted, which could be forfeited subject to failure in fulfilling the roll out obligations. The licensee had to also submit an additional financial bank guarantee of Rs. 20 crores. The ILD operators also had to pay a 6 per cent of the annual adjusted gross revenue as annual licence fee. The Guideline also laid down that an additional fee will be charged for the universal service obligation and use of spectrum
The ILD operator has to submit to the DoT detailed plan of the rollout obligation and also commission at least one gateway switch in order to interconnect with NLD licensees. Such networks must be in conformity with the international and national standards.
For provide ILD services, the operator may obtain leased lines from other access providers.
The ILD operators can provide lower-than-toll quality service, provided that there is no degradation in the quality of services.
The gateway and landing stations may be established. However, this will be subject to security and monitoring requirements.
The ILD operator had to furnish detailed accounts periodically and furnish any such information requested by TRAI.
An ILD operator, must co-operate provide facilities to law enforcement and government agencies for monitoring and surveillance. However, the licensee must also ensure protection of privacy of communication.

[1]. The auction process consisted of three rounds of bidding. A minimum bid price was prescribed for each round. The highest bid in the first round was declared the minimum reserve price in the second round. Subsequently the highest bid in the second round was set as the reserve price in the third round. The lowest bidders in each round were rejected to participate in the next round of bidding.

[2]. Annexure 1, Guidelines for Unified Access (Basic and Cellular) Service Licence, November 11, 2003 available at www.dot.gov.in/uas/Guidelines-Unified_License111103.doc

For more details visit https://cis-india.org/telecom/resources/govt-policy-and-guidelines

Government of India's Response to WGEC Questionnaire

snehashish — 2014-01-22T16:55:43Z

The Working Group on Enhanced Cooperation circulated a questionnaire to collect the views and positions of the stakeholders on the various aspects of enhanced cooperation. India's response to the questionnaire is documented below for archival purposes.

INDIA, Permanent Mission of India to the United Nations Office
9, RUE DU VALAIS, 1202, GENEVA
Mission.india@ties.itu.int

1. Which stakeholder category do you belong to?
Government
If non-government, please indicate:
If non-government, please indicate if you are:

2. What do you think is the significance, purpose and scope of enhanced cooperation as per the Tunis Agenda? 1) Significance 2) Purpose 3) Scope

Significance
The World Summit on Information Society (WSIS), held in two phases had discussed the issues relating to Internet Governance at a great length and in detail and recommended (i) convening a new forum for multi-stake holder policy dialogue and (ii) beginning the process towards Enhanced Cooperation. As a result of the first recommendation, an Internet Governance Forum was established in 2006 as a forum for dialogue among various stakeholders. However, the process towards Enhanced Cooperation to develop international public policy issues pertaining to Internet in a fair and equitable manner is yet to take off. The use of internet and its socio-economic impact has grown further in the last few years. This has made the need for Enhanced Cooperation even more significant and urgent.
Purpose
The purpose of Enhanced Cooperation is to enable governments, on an equal footing, through a suitable multilateral, transparent and democratic mechanism, to carry out their roles and responsibilities in international public policy issues pertaining to the Internet, in consultation with all other stakeholders.
Scope
The scope of Enhanced Cooperation covers international public policy issues pertaining to the internet as well as the development of globally-applicable principles on public policy issues pertaining to the coordination and management of critical internet resources, but not the dayto-day technical and operational matters, that do not impact on international public policy issues.

3. To what extent has or has not enhanced cooperation been implemented? Please use the space below to explain and to provide examples to support your answer.

Enhanced Cooperation, as envisaged in Paras 68 and 69 of the Tunis Agenda, has not been realized. This remains a major shortcoming in implementation of WSIS Outcomes related to Enhanced Cooperation, considering that a specific mandate was given by the World Summit for Information Society (WSIS) in 2005 to begin such a process of Enhanced Cooperation in the first quarter of 2006. There is no multilateral, transparent and democratic global platform where governments can, on an equal footing, decide the full range of international public policies related to internet, in a holistic manner. There is also no mechanism for the development of globally-applicable principles on public policy issues including those pertaining to coordination and management of critical Internet resources. Not establishing an Enhanced Cooperation process has denied the Governments an opportunity to carry out their roles and responsibilities in international public-policy issues pertaining to the internet.

4. What are the relevant international public policy issues pertaining to the Internet?
The Working Group on Internet Governance set up by WSIS identified many public policy issues pertaining to internet, which continue to be relevant today, as listed below:

Issues relating to infrastructure and the management of critical Internet resources, including administration of the domain name system and Internet protocol addresses (IP addresses), administration of the root server system, technical standards, peering and interconnection, telecommunications infrastructure, including innovative and convergent technologies, as well as multilingualization;
Issues relating to the use of the Internet, including spam, network security and cybercrime;
Issues that are relevant to the Internet but have an impact much wider than the Internet and for which existing organizations are responsible, such as intellectual property rights (IPRs) or international trade;
Issues relating to the developmental aspects of Internet governance, in particular capacity building in developing countries;
Issues relating to interconnection costs, meaningful participation in global policy development, freedom of expression, Data protection and privacy rights, Consumer rights, convergence and “next generation networks” (NGNs), as well as trade and e-commerce; Furthermore, Para 59 of the Tunis Agenda recognised that Internet Governance includes social, economic and technical issues including affordability, reliability and quality of service and para 60 of the Tunis Agenda recognised that there are many cross-cutting public policy issues that require attention. Since WSIS, international internet-related public policy issues have only grown in their number as well as importance. Several issues such as cloud computing have emerged in the last few years. Newer issues will keep arising with significant international public policy dimensions as the Internet continues to evolve and grow in its reach and spread.

5. What are the roles and responsibilities of the different stakeholders, including governments, in implementation of the various aspects of enhanced cooperation?

Enhanced Cooperation is a dynamic process due to the dynamic nature of internet. As a result, the roles and responsibilities of different stakeholders would need to be broadly defined. In this regard, we concur with the recommendations of the Working Group on Internet Governance on the role of different stakeholders — as listed below: Governments: Public authority for Internet related public policy issues is the sovereign right of States and that they have rights and responsibilities for international Internet public policy.

Their roles and responsibilities include:-

Public policy-making and coordination and implementation, as appropriate, at the national level, and policy development and coordination at the regional and international levels;
Creating an enabling environment for information and communication technology (ICT) development; Oversight functions; Development and adoption of laws, regulations and standards;
Treaty-making; Development of best practices; Fostering capacity-building in and through ICTs;
Promoting research and development of technologies and standards;
Promoting access to ICT services; Combating cybercrime;
Fostering international and regional cooperation;
Promoting the development of infrastructure and ICT applications;
Addressing general developmental issues;
Promoting multilingualism and cultural diversity;

Dispute resolution and arbitration.

Private sector: The private sector has important role and responsibilities which include the following:-
Industry self-regulation; Development of best practices; Development of policy proposals, guidelines and tools for policymakers and other stakeholders; Research and development of technologies, standards and processes; Contribution to the drafting of national law and participation in national and international policy development; Fostering innovation; Arbitration and dispute resolution; Promoting capacity-building.

Civil society: Civil society has also played an important role on Internet matters especially at the community level and should continue to play such roles. The roles and responsibilities of civil society include:

Awareness-raising and capacity-building (knowledge, training, skills sharing);
Promoting various public interest objectives; Facilitating network-building; Mobilizing citizens in democratic processes;
Bringing perspectives of marginalized groups, including, for example, excluded communities and grass-roots activists;
Engaging in policy processes; Contributing expertise, skills, experience and knowledge in a range of ICT policy areas;
Contributing to policy processes and policies that are more bottom-up, people-centred and inclusive; Research and development of technologies and standards; Development and dissemination of best practices;
Helping to ensure that political and market forces are accountable to the needs of all members of society;
Encouraging social responsibility and good governance practice. Advocating for the development of social projects and activities that are critical but may not be “fashionable” or profitable;
Contributing to shaping visions of human-centred information societies based on human rights, sustainable development, social justice and empowerment.

Furthermore, the contribution to the Internet of the academic community is very valuable and constitutes one of its main sources of inspiration, innovation and creativity. Similarly, the technical community and its organizations are deeply involved in Internet operation, Internet standard-setting and Internet services development. Both of these groups make a permanent and valuable contribution to the stability, security, functioning and evolution of the Internet. They interact extensively with and within all stakeholder groups. The para 35 of the Tunis Agenda recognises the role of intergovernmental organizations in facilitating the coordination of internet related public policy issues and international organizations in the development of internet related technical standards and relevant policies.

6. How should enhanced cooperation be implemented to enable governments, on an equal footing, to carry out their roles and responsibilities in international public policy issues pertaining to the Internet?

A suitable multilateral, transparent and democratic mechanism must be created where governments, on an equal footing, may carry out their roles and responsibilities in international public policy issues pertaining to the Internet and public policy issues pertaining to coordination and management of critical Internet resources, in consultation with all other stakeholders. India would submit its recommendations on such a mechanism separately to the WGEC.
WGEC should submit its recommendation on the broad parameters of such a mechanism to the UNGA through CSTD as an input to the overall review of the outcomes of the WSIS.

7. How can enhanced cooperation enable other stakeholders to carry out their roles and responsibilities?

The mechanism should be designed so as to enable the other stakeholders to discharge their respective roles and responsibilities as mentioned above in response to Question 5 above in an effective manner. Further, Para 70 of the Tunis Agenda stated that relevant international organizations responsible for essential tasks associated with the Internet should contribute in creating an environment that facilitates the development of public policy principles. Therefore these organizations would need to make necessary changes to facilitate an appropriate interface with the mechanism of Enhanced Cooperation.

8. What are the most appropriate mechanisms to fully implement enhanced cooperation as recognized in the Tunis Agenda, including on international public policy issues pertaining to the Internet and public policy issues associated with coordination and management of critical Internet resources?

It is relevant to recall relevant paragraphs of the Tunis Agenda to identify most appropriate mechanisms to fully implement enhanced cooperation. The Para 69 sets the tone for Governments to define a mechanism of the enhanced cooperation. This paragraph together with other paras in the Tunis Agenda, when read with the WSIS outcomes clearly provides the basis for establishing the mechanism of enhanced cooperation. The sequence of paragraphs that help define the contours of a mechanism is as follows:

Para 29 states that international management of internet should be multilateral, transparent and democratic with the full involvement of governments and other stakeholders.
Para 31 commits to full participation of all stakeholders, within respective roles and responsibilities, to ensure requisite legitimacy of governance of internet.
The roles and responsibilities of various stakeholders have been defined in brief in para 35 of the Tunis Agenda and in detail in paras 29-34 of WGIG report.
In Para 60 of the Tunis Agenda, the Leaders have clearly pointed out the inadequacy of the current mechanisms for dealing with many cross-cutting international public policy issues. As a sequel to this recognition, Para 61 stresses the need to initiate, and reinforce, as appropriate, a transparent, democratic, and multilateral process, with the participation of governments, private sector, civil society and international organizations, in their respective roles.
Para 68 further recognizes the need for development of public policy by governments in consultation with all stakeholders. The Para 69 recognises the importance of the governments to act on an equal footing with each other. Thus, there is a clear mandate for defining a mechanism for effective and enhanced cooperation on global internet governance. India would submit its recommendations on such a mechanism separately to the WGEC.

9. What is the possible relationship between enhanced cooperation and the IGF?

The IGF is a forum for multi-stakeholder dialogue. The discussions and dialogue in IGF would enrich the process of development of the international public policy issues pertaining to the Internet by the mechanism proposed under Enhanced Cooperation. Enhanced Cooperation is a mechanism for policy development whereas IGF is a forum for policy dialogue - IGF is, thus, a distinct and a complementary process to the enhanced cooperation mechanism. IGF should contribute its outcomes as inputs into the policy development/ making processes to be undertaken by the new mechanism for Enhanced Cooperation.

10. How can the role of developing countries be made more effective in global Internet governance?

Paragraph 65 of the Tunis Agenda underlines the need to maximize the participation of developing countries in decisions regarding Internet governance, which should reflect their interests, as well as in the development of capacity building. The developing countries are integral part of the global Internet governance. They would participate, at equal footing in the mechanism explained above.

11. What barriers remain for all stakeholders to fully participate in their respective roles in global Internet governance? How can these barriers best be overcome?

The main barrier to the participation of stakeholders is the absence of a mechanism for global internet governance where they can participate in their respective roles. Second barrier to participation of stakeholders is the nature of selection process of participants who represent these stakeholders. The process of selection of the representatives should be made in a transparent manner and using an inclusive approach.
12. What actions are needed to promote effective participation of all marginalised people in the global information society?

The mechanism proposed above involves all stakeholders, having important role to play in addressing the challenge to effective participation of marginalised people. Challenges like accessibility, availability and affordability of information services have to be addressed at regional, national and international level with participation of all stakeholders in their respective roles and responsibilities effectively.

13. How can enhanced cooperation address key issues toward global, social and economic development?

Since enhanced cooperation would facilitate establishment of a mechanism to formulate international internet related public policies with the participation of all stakeholders in their respective roles from developed and developing countries, the implementation of these policies would be able to address the issues toward global, social and economic development in a better way than today.

14. What is the role of various stakeholders in promoting the development of local language content?

Development of local language content is an important element in ensuring overall socioeconomic development. All stakeholders have an important role to play in generation, dissemination and consumption of the local language content. National governments would be responsible for creation of an enabling environment including, development of relevant standards, legal protection and business opportunities. Private sector would be responsible to provide innovative solutions to the challenge. Civil society would play a very important role in supporting and generating community interest towards local language content development.

15. What are the international internet-related public policy issues that are of special relevance to developing countries?

The issues important for developing countries include accessibility, affordability and availability of the information services and technologies. The public policy issues contained in our replies to Question No. 4 are also equally important for developing countries.

16. What are the key issues to be addressed to promote the affordability of the Internet, in particular in developing countries and least developed countries?

The key issues relating to affordability of the Internet, include the following:-

Co-location of content in geographically dispersed location along with Content Distribution Networks (CDNs)
Lowering of Interconnection costs
Internet Exchange Points with peering for routing local traffic and interconnection across borders
Location of Internet “host” computers in the country and/or region.
Regional backbones that interlink countries in the region and which also link to international backbones
Location of the root server systems in these countries
Interoperability and Net Neutrality - In response to the limitation posed by propriety software, alternative products such as Free and Open Source Software (FOSS) and alternative licensing regimes (for example Creative Commons, Copy left etc.) to help reduce the costs and (legal) risks associated with proprietary software and content.
Multi-lingualization (Internationalized Domain Names and Local Language Content).
Affordability in accessing International internet connectivity.

17. What are the national capacities to be developed and modalities to be considered for national governments to develop Internet-related public policy with participation of all stakeholders?

The national capacities that need to be considered by national governments to develop Internet related public policy include:

Setting up of Centre of Excellence on Internet Governance and related issues.
Establishment of R&D centers in the area of Internet related Public Policy.
Introduction of formal courses on Internet governance in premier educational institutes for Industries, Academia & Civil Society.
Introduction of Training and Awareness building programmes in the area of Internet Governance.
Creation of online Knowledge Repository Portal on Internet Governance.

18. Are there other comments, or areas of concern, on enhanced cooperation you would like to submit?

Enhanced Cooperation is a dynamic process, and hence it requires periodic reassessment – based on the feedback from Governments as well as other relevant stakeholders, on any inter-governmental mechanism that is set up to oversee its operationalization.

For more details visit https://cis-india.org/internet-governance/resources/government-of-indias-response-to-wgec-questionnaire-1

Electoral Databases – Privacy and Security Concerns

snehashish — 2014-01-16T11:07:21Z

In this blogpost, Snehashish Ghosh analyzes privacy and security concerns which have surfaced with the digitization, centralization and standardization of the electoral database and argues that even though the law provides the scope for protection of electoral databases, the State has not taken any steps to ensure its safety.

The recent move by the Election Commission of India (ECI) to tie-up with Google for providing electoral look-up services for citizens and electoral information services has faced heavy criticism on the grounds of data security and privacy.[i] After due consideration, the ECI has decided to drop the plan.[ii]

The plan to partner with Google has led to much apprehension regarding Google gaining access to the database of 790 million voters including, personal information such as age, place of birth and residence. It could have also gained access to cell phone numbers and email addresses had the voter chosen to enroll via the online portal on the ECI website. Although, the plan has been cancelled, it does not necessarily mean that the largest database of citizens of India is safe from any kind of security breach or abuse. In fact, the personal information of each voter in a constituency can be accessed by anyone through the ECI website and the publication of electoral rolls is mandated by the law.

Publication of Electoral Rolls
The electoral roll essentially contains the name of the voter, name of the relationship (son of/wife of, etc.), age, sex, address and the photo identity card number. The main objective of creation and maintenance of electoral rolls and the issue of Electoral Photo Identity Card (EPIC) was to ensure a free and fair election where the voter would have been able to cast his own vote as per his own choice. In other words, the main purpose of the exercise was to curtail bogus voting. This is achieved by cross referencing the EPIC with the electoral roll.

The process of creation and maintenance of electoral rolls is governed by the Registration of Electors Rules, 1960. Rule 22 requires the registration officer to publish the roll with list of amendments at his office for inspection and public information. Furthermore, ECI may direct the registration officer to send two copies of the electoral roll to every political party for which a symbol has exclusively been reserved by the ECI. It can be safely concluded that the electoral roll of a constituency is a public document[iii] given that the roll is published and can be circulated on the direction of the ECI.

With the computational turn, in 1998 the ECI took the decision to digitize the electoral databases. Furthermore, printed electoral rolls and compact discs containing the rolls are available for sale to general public.[iv] In addition to that, the electoral rolls for the entire country are available on the ECI website.[v] However, the current database is not uniform and standardized, and entries in some constituencies are available only in the local language. The ECI has taken steps to make the database uniform, standardized and centralized.[vi]

Security Concerns
The Registration of Electoral Rules, 1960 is an archaic piece of delegated legislation which is still in force and casts a statutory duty on the ECI to publish the electoral rolls. The publication of electoral rolls is not a threat to security when it is distributed in hard copies and the availability of electoral rolls is limited. The security risks emerge only after the digitization of electoral database, which allows for uniformity, standardization and centralization of the database which in turn makes it vulnerable and subject to abuse. The law has failed to evolve with the change in technology.

In a recent article, Bill Davidow analyzes "the dark side of Moore’s Law" and argues that with the growth processing power there has been a growth in surveillance capabilities and on this note the article is titled, “With Great Computing Power Comes Great Surveillance”[vii] Drawing from Davidow’s argument, with the exponential growth in computing power, search has become convenient, faster and cheap. A uniform, standardized and centralized database bearing the personal information of 790 million voters can be searched and categorized in accordance with the search terms. The personal information of the voters can be used for good, but it can be equally abused if it falls into the wrong hands. Big data analysis or the computing power makes it easier to target voters, as bits and pieces of personal information give a bigger picture of an individual, a community, etc. This can be considered intrusive on individual’s privacy since the personal information of every voter is made available in the public domain

For example, the availability of a centralized, searchable database of voters along with their age would allow the appropriate authorities to identify wards or constituencies, which has a high population of voters above the age of 65. This would help the authority to set up polling booths at closer location with special amenities. However, the same database can be used to search for density of members of a particular community in a ward or constituency based on the name, age, sex of the voters. This information can be used to disrupt elections, target vulnerable communities during an election and rig elections.

Current IT Laws does not mandate the protection of the electoral database
A centralized electoral database of the entire country can be considered as a critical information infrastructure (CII) given the impact it may have on the election which is the cornerstone of any democracy. Under Section 70 of the Information Technology Act, 2000 (IT Act) CII means “the computer resource, incapacitation or destruction of which, shall have debilitating impact on national security, economy.”[viii] However, the appropriate Government has not notified the electoral database as a protected system[ix]. Therefore, information security practices and procedures for a protected system are not applicable to the electoral database.

The Information Technology Rules (IT Rules) are also not applicable to electoral databases, per se. Since, ECI is not a body corporate, the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information), Rules, 2011 (hereinafter Reasonable Security Practices Rules) do not apply to electoral databases. Ignoring that Reasonable Security Practices Rules only apply to a body corporate, the electoral database does fall within the ambit of definition of “personal information”[x] and should arguably be made subject to the Rules.

The intent of the ECI for hosting the entire country’s electoral database online inter alia is to provide electronic service delivery to the citizens. It seeks to provide “electoral look up services for citizens ... for better electoral information services.”[xi] However, the Information Technology (Electronic Service Delivery) Rules, 2011 are not applicable to the electoral database given that it is not notified by the appropriate Government as a service to be delivered electronically. Hence, the encryption and security standards for electronic service delivery are not applicable to electoral rolls.

The IT Act and the IT Rules provide a reasonable scope for the appropriate Government to include electoral databases within the ambit of protected system and electronic service delivery. However, the appropriate government has not taken any steps to notify electoral database as protected system or a mode of electronic service delivery under the existing laws.

Conclusion
Publication of electoral rolls is a necessary part of an election process. It ensures free and fair election and promotes transparency and accountability. But unfettered access to electronic electoral databases may have an adverse effect and would endanger the very goal it seeks to achieve because the electronic database may pose threat to privacy of the voters and also lead to security breach. It may be argued that the ECI is mandated by the law to publish the electoral database and hence, it is beyond the operation of the IT Act. But Section 81 of the IT Act has an overriding effect on any law inconsistent, therewith. The appropriate Government should take necessary steps under the IT Act and notify electoral databases as a protected system.

It is recommended that the Electors Registration Rules, 1960 should be amended, taking into account the advancement in technology. Therefore, the Rules should aim at restricting the unfettered electronic access to the electoral database and also introduce purposive limitation on the use of the electoral database. It should also be noted that more adequate and robust data protection and privacy laws should be put in place, which would regulate the collection, use, storage and processing of databases which are critical to national security.

[i] Pratap Vikram Singh, Post-uproar, EC’s Google tie-up plan may go for a toss, Governance Now, January 7, 2014 available at http://www.governancenow.com/news/regular-story/post-uproar-ecs-google-tie-plan-may-go-toss

[ii] Press Note No.ECI/PN/1/2014, Election Commission of India , January 9, 2014 available at http://eci.nic.in/eci_main1/current/PN09012014.pdf

[iii] Section 74, Indian Evidence Act, 1872

[iv] eci.nic.in/eci_main1/the_function.aspx

[v] http://eci.nic.in/eci_main1/Linkto_erollpdf.aspx

[vi] “At present, in most States and UTs the Electoral Database is kept at the district level. In some cases it is kept even with the vendors. In most States/UTs it is maintained in MS Access, while in some cases it is on a primitive technology like FoxPro and in some other cases on advanced RDBMS like Oracle or Sql Server. The database is not kept in bilingual form in some of the States/UTs, despite instructions of the Commission. In most cases Unicode fonts are not used. The database structure not being uniform in the country, makes it almost impossible for the different databases to talk to each other” – Election Commission of India, Revision of Electoral Rolls with reference to 01-01-2010 as the qualifying date – Integration and Standardization of the database- reg., No. 23/2009-ERS, January 6, 2010 available at eci.nic.in/eci_main/eroll&epic/ins06012010.pdf

[vii] http://www.theatlantic.com/technology/archive/2014/01/with-great-computing-power-comes-great-surveillance/282933/

[viii] Section 70, Information Technology Act, 2000

[ix] Computer resource which directly or indirectly affects the facility of Critical Information Infrastructure

[x] Rule 2(1)(i), Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

[xi] Press Note No.ECI/PN/1/2014, Election Commission of India , January 9, 2014 available at http://eci.nic.in/eci_main1/current/PN09012014.pdf

For more details visit https://cis-india.org/internet-governance/blog/electoral-databases-2013-privacy-and-security-concerns

DoT — Its Powers and Responsibilities

snehashish — 2013-03-15T06:24:19Z

The Department of Telecommunication (DoT) works under the aegis of the Ministry of Communications and Information Technology. DoT is headed a secretary, who is a senior member of the Indian Administrative Services. The secretary of the DoT reports to the Union Minister for Communications and Information Technology.

DoT used to provide basic telecommunication services. This function was shifted to BSNL after its formation in October, 2000. Presently, the main powers and responsibilities of the DoT as laid down in the Government of India (Allocation of Business) Rules, 1961 are:

Formulation of policy, allocation of licence and co-ordination with matters relating to telegraphs, telephones, wireless, data, facsimile and telematic services and other like forms of communications.
Co-operation with international bodies on matters related to telecommunication
Promotion of standardization and research and development in the telecom sector.
Promotion of private investment in telecommunication industry
Allocation of spectrum mobile and radio communications.
Administration of laws with respect to any of the matters specified in this list, namely: The Indian Telegraph Act, 1885 (13 of 1885); The Indian Wireless Telegraphy Act, 1933 (17 of 1933); and The Telecom Regulatory Authority of India Act, 1997 (24 of 1997).
Supervision over the functioning of the following organizations: Telecom Commission, Telecom Regulatory Authority of India, Telecom Disputes Settlement Appellate Tribunal, Centre for Development of Telematics, Bharat Sanchar Nigam Limited, Mahanagar Telephone Nigam Limited, ITI Limited, Telecommunication Consultants (India) Limited and Administrative office of the Universal Service Obligation Fund.

For more details visit https://cis-india.org/telecom/resources/dot-its-powers-and-responsibilities

Comments on the Science, Technology and Innovation Policy (Draft)

snehashish — 2012-12-01T15:36:38Z

The Department of Science and Technology invited public comments on the Science, Technology and Innovation Policy (Draft). Accordingly, the Centre for Internet and Society has made the following comments on the draft policy document.

Department of Science and Technology,
Ministry of Science and Technology,
Government of India

Subject: Comments on the Science, Technology and Innovation Policy (Draft)

Dear Sir/Madam,

We at the Centre for Internet and Society commend the drafting of the Science, Technology and Innovation Policy 2013 (Draft). It is a well rounded policy which will pave the way for further informed policy decisions on innovation and research and development in the country.

Few of the notable and welcome policy statements are:

The Policy aims at ‘inclusive innovation’ and takes into consideration the “need to ensure access, availability and affordability of solutions to as large a population as possible”. It also aims at building a conducive environment for research and development by modifying the IPR policy to include marching rights with respect to social goods funded by public. This in line with the aim of the policy to provide access new technologies. The use of government funding in commercially viable research would not only assure better access to medicine and other technological innovations but also ensure knowledge transfer.

The policy decision to "foster data sharing and access" is most welcome and will act as a catalyst for further research and development through open and collaborative research and development.

Policy also lays emphasis on open source discoveries for "public and social good" and it is indeed a pleasure to note that the Policy wishes to build knowledge commons by collaborative generation of IPR. This will definitely go a long way in encouraging further innovation in the country.

It is also appreciated that the policy will aim at "increasing accessibility, availability and affordability of innovations" and will establish a fund for innovation in this direction.

The Policy also states that the "people" and "decision makers" should be made aware of the implications of emerging technologies, including their ethical, social and economic dimensions. Implementation of such policy is a necessity and will enable the government to make informed policy decisions in the future.

Suggestion:

It is submitted that the policy document should take into account that in order ensure ‘inclusive innovation’ and accessibility, the policy should specifically include mandates to encourage and foster innovation in technology related to accessibility tools for persons with disabilities.www.dst.gov.in/sti-policy.pdf

For more details visit https://cis-india.org/a2k/blogs/comments-on-science-technology-and-innovation-policy-draft