With the India-U.S. Working Group on Information and Communication Technologies (WG-ICT) meeting in Washington D.C. a week ago, the Internet is finally at the front and centre of the National Democratic Alliance government’s foreign policy. The WG-ICT was set up in 2005, following Dr. Manmohan Singh’s visit to the U.S. If its meetings were hitherto held under the umbrella of Indo-U.S. economic dialogue, the WG-ICT’s future work will be dominated by the requirements of the ‘Digital India’ programme. In the coming months, the group’s deliberations are expected to yield results on some of the key components of the programme — digital infrastructure (to support the National Optic Fibre Network), an ‘Internet of Things’ (IoT) regime (essential to building smart cities), and foreign ICT investment (in line with the ‘Make in India’ policy). The WG-ICT agenda is also likely to receive sustained attention from the Prime Minister’s Office, which has invested enormous political capital in the Digital India initiative. This political imperative, however, must be sensitive to global developments as New Delhi prepares to negotiate a host of technology-related agreements with the West.A welcome decision
The NDA government’s decision to engage the WG-ICT is welcome. On areas like climate change and international trade, the U.S. has often used the bilateral route to circumvent multilateral regimes. On the digital front, however, the international community is yet to generate legal instruments on e-commerce, cybersecurity and Internet governance. This provides wiggle room for both countries to draw their red lines and even offer a model that can be emulated in a regional or multilateral setting.
The WG-ICT, however, should not become a vehicle to nudge India into negotiating the draft text of the Trade in Services Agreement (TISA), a breakaway treaty that has sought to create consensus where none could be found during the Doha round of talks at the World Trade Organization. TISA negotiations — comprising a bloc of 28 countries and led by the U.S. — began three years ago under a veil of secrecy. In late 2014, a draft of TISA provisions relating to online services was leaked to the public. The leaked provisions revealed what the U.S. views as foreign policy deliverables on the digital front, which Indian negotiators would do well to take into account as they head to WG-ICT meetings. Draft TISA provisions require state parties not to impose obligations on online service providers to maintain a “commercial presence” locally. TISA signatories would also be prohibited from asking Internet companies to maintain servers within their borders. Governments can neither ask online services to prefer locally produced hardware over foreign manufacturers nor promote domestic content at the cost of other applications. The draft agreement also discourages domestic laws mandating technology or intellectual property transfer to local companies. Some TISA provisions further the case for uninterrupted flow of information across networks. On the whole, however, they would deal a blow to policies like ‘Make in India,’ which can only be sustained through some preferential treatment to India’s underdeveloped electronic sector. Given that exports of digital services have outgrown those of every other commodity in the U.S., it is not surprising that Secretary of State John Kerry expressed his concerns about the ‘Make in India’ policy at the Vibrant Gujarat summit earlier this month.
Even if India is not an active interlocutor in TISA negotiations, the underlying message from the U.S. and EU is hard to miss: commercial cyberspace is better left unregulated. As it prepares to draft new digital policies and calibrate existing ones, India’s negotiators will likely face resistance from their Western counterparts in forums like the WG-ICT.
For instance, the Ministry of Home Affairs has been holding consultations on national information security guidelines, spurred to action by the Edward Snowden revelations of U.S. snooping on foreign governments. These guidelines purportedly deal with measures like encryption and digital authorisation. On the other hand, draft TISA provisions push countries to let transacting parties “mutually determine the appropriate [electronic] authentication methods,” undermining the government’s role in fostering consumer confidence. India is also building its own certification labs that test electronic equipment. Indigenous testing, it is hoped, will trigger greater R&D in electronics manufacturing, but its effects will be waylaid by an agreement that reduces the scope for regulating imported equipment.
Just as critical would be WG-ICT deliberations on India’s IoT programme. IoT refers to a digital ecosystem where the needs of consumers are seamlessly recognised by Internet-connected devices around them, enabling the fast and automated delivery of services. The Modi government’s vaunted objective of building “smart cities” is contingent on an effective IoT policy.
Such a system, however, relies on extensive data collected from citizens — vehicle records, dietary habits, or even consumption patterns — placing a premium on privacy and information security. Moreover, an IoT system needs sustained collaboration between the domestic private and public sectors. In October 2014, the Department of Electronics and IT put out a draft IoT policy that acknowledged these concerns. Foreign corporations will be keen to contribute to the “smart cities” project — the Indian IoT industry is estimated to be worth $15 billion by 2020. But before the WG-ICT can negotiate the terms of operation for U.S. technology giants in India’s IoT market, domestic measures that account for data privacy and Intellectual Property Rights of local and foreign manufacturers must be in place.Internet governance
Internet governance is another field where New Delhi must get its house in order ahead of the IANA transition process. With the contract between the U.S. and the Internet Corporation for Assigned Names and Numbers set to expire in September 2015, India’s views on global Internet governance will doubtless be solicited during WG-ICT talks. India’s Internet economy is not on par with the U.S. but a bilateral forum like the WG-ICT helps level the playing field for its negotiators. New Delhi should not offer open-ended commitments to buy U.S. services without a forensic analysis of what they would mean for domestic constituents: the technical community, businesses, the public sector and end users of the Internet. If the Narendra Modi government intends to weave digital concerns into its core foreign policy agenda, its negotiating position has to be supported by sound domestic policies. Heading into bilateral talks without such a technical or legal framework would neither bode well for the Digital India initiative’s goals or for India’s fledgling Internet economy.
(Arun Mohan Sukumar is senior fellow, Centre for Communication Governance, National Law University, Delhi.)