Telegram, the instant messaging app, has refused to hand over chat details of the ISIS module Ansar-ul-Khilafah Kerala despite several queries from the National Investigation Agency (NIA), The New Indian Express reported. During the trial of the module’s alleged members, NIA court judge P. Krishna Kumar asked the NIA whether any attempts had been made to collect details about the module’s Telegram channels and the identities of all their members. NIA prosecutor Arjun Ambalapatta replied that the agency had made several such attempts and sent queries to Telegram on many occasions. “But Telegram did not respond to any of our queries. They do not share any details about users and channels,” he said.

How can Telegram refuse to comply?

There are a few reasons for this, which were highlighted in recent submissions on intermediary liability and OTT services:

Companies and servers located outside India: “ … the fact that many of popular Platforms are owned by foreign entities and the servers of such foreign Platform operators are mostly located abroad, makes it further difficult for the Indian law enforcement agencies to get the required information/assistance in a time bound manner in case of violation of any provision under the IT Act and associated Rules. ” [from Intermediary Liability submission]

“ ” [from Intermediary Liability submission] No representatives in India: For a number of these OTT services, there are no representatives in India, making it difficult to expedite any government request, no matter the urgency.

For a number of these OTT services, there are no representatives in India, making it difficult to expedite any government request, no matter the urgency. Encryption keys stored outside India: “… all communication on these applications are generally encrypted and the encryption keys are not stored within the nation’s geographical boundaries. Thus even if the security agencies attempt to intercept information and communication on OTT applications with the help of service providers, they get only the raw data, as the OTT communication is heavily encrypted and it is extremely difficult for the Government and service provides to obtain decryption keys.” [from OTT consultation]

What steps are being considered?

Through a regulatory framework for OTT services and amendments to the intermediary liability rules, the government and some industry players are hoping to make national security of paramount importance. Here are a couple of submissions on the government’s proposed intermediary liability rules:

Incorporate large foreign platforms under Indian laws, appoint a nodal officer

“Incorporation of large foreign Platform companies under Indian laws and appointment of nodal officer to coordinate with law enforcement agencies, to bring such companies under effective reach of Indian regulations.” [from Intermediary Liability submission]

“We support the provision that any intermediary with more than 50 lakh users in India should be registered and incorporated under Companies Act 1956. This would ensure that the law enforcement agencies can implement the Indian laws effectively and can hold the foreign firm accountable in case of violation of any clause of the Act.” [from Intermediary Liability submission]

Telegram’s troubles in India…

Several Indian ISPs sporadically blocked access to Telegram’s web version — though not the app — over the past year:

We understand your concern. The Website has been indefinitely blocked as per the instructions received from the government. Hence you are unable to access the Website – Delna — JioCare (@JioCare) December 3, 2018

In December 2018, in response to a customer complaint, JioCare tweeted, “The website [Telegram Web] has been indefinitely blocked as per the instructions received from the government.”

In February, the Internet Freedom Foundation reported that Reliance Jio was blocking the messaging service’s web domain.

In April, we reported that Jio and Hathaway (in which Reliance owns a majority share through subsidiaries) had blocked Telegram Web in several states. The website, when accessed on a Jio or Hathaway network, read, “Your requested URL has been blocked as per the directions received from Department of Telecommunications, Government of India.”

… and abroad