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INDIAN WALK FOR A 5-G AIM: A CONFLICT BETWEEN SECURITY AND DEVELOPMENT PRIORITIES

Introduction to 5G Technology

5G is the fifth generation of the mobile network after the global network standards of 1G, 2G, 3G and 4G, and aims to provide faster and more reliable communication and enhanced networking to a large number of users. With an ultra-low latency period, it enables users to download heavy data-consuming content, develop emerging technologies like the Internet of Things ('IoT'), and establish machine to machine communications.

The 5G networking plan of India has its roots in 2018 when the government launched a three-year programme and allocated a budget of Rs 224 crore to promulgate research in the 5G sector. In this light, in 2019 the government had announced holding auctions for spectrum to offer 5G services in the country. Among other telecom companies which looked forward to these auctions was Huawei, the crown jewel of China’s telecom infrastructure and the world’s prominent telecom equipment maker. However, owing to various reasons, it faces blockades from several countries. This tussle has put to test the relationship between India and the telecom giant amidst the sour relations between New Delhi and Beijing.

The article tries to assess the scope of 5G technology in India with an emphasis on Huawei’s involvement in the project. Secondly, the article tries to elaborate on ramifications of the presence or absence of Huawei on the Indian aim of digitalisation. Thirdly, it indicates towards the legal vacuum which needs to be fulfilled before moving ahead with a full-fledged 5G plan that would definitely involve a public-private partnership.

Huawei: the need for India?

By 2018, Huawei was the largest telecom equipment maker in the world surpassing Switzerland's Ericsson. However, it has seen a drop owing to rampant spying allegations by the United States and its allies. The telecom giant has a contribution of 25% in the Indian telecom market. Further, most of the domestic telecom companies, including Bharti Airtel and Vodafone Idea use 30% and 40% of the Chinese equipment, respectively. BSNL, a state-owned telecom operator, heavily banks upon China's ZTE for network equipment. An estimated 60% of the telecom equipment supply to BSNL comes from ZTE and Huawei. In 2019, Huawei had signed an alliance with Bharti Airtel and Vodafone Idea regarding the 5G network plot initiative.

Recently, the company employed the use of 5G in combating the COVID-19 pandemic. The 5G network has proved to be useful in intensifying construction of temporary hospitals and facilitating patient treatment efficiently. With improved connectivity that comes with 5G, even the least accessible terrains of China have been brought within the ambit of governance.A similar aid has also been offered by Huawei to India to jack up its fight against the pandemic. This includes deploying 5G installations for remote temperature monitoring and conquering ground accessibility challenge.

Inter alia, the company has also offered aid to India in strengthening the existing networks as 5G layout develops. The aim of the Indian government stands at achieving sabka saath sabka vikaas and making education and other necessities available across all regions of the country. A 5G plan seems to offer a way for this accomplishment and also speed up India's long walk towards a digital economy. Huawei is the crown jewel of the global telecom sector and provides efficient technology at reasonable prices compared to other European telecom companies like Ericsson, with whom India has partnered with. It is predicted that without the help of Huawei, India's 5G programme is likely to enhance its costs and the estimated development period.

However, this alliance seems to stand at a wobbly crust owing to several international criticisms against the Chinese company and India's longstanding disputes with its country of origin.

The quagmire Huawei finds itself in is a result of a campaign led by the U.S. against the telecom giant accusing it of espionage for China. It has been alleged that the company provides all the data of U.S. citizens to Beijing, steals trade secrets and violates recekteering laws, thereby threatening the national and security interests of the country. It has also been alleged that the Huawei also provides aids to countrues which face US imposed sanctions. Affirming these claims, the U.S. Federal Communications Commission has designated Huawei, ZTE, and all their parents and subsidiaries as 'national security threats'.Several U.S. allies have followed the line and imposed similar bans on the Huawei. The U.K. has ordered the removal of the Huawei 5G kit from the country by 2027., conceding to a 5G roll back by 2-3 years along with a cost of $2 billion that it would incur if Huawei were to pull out. Many other countries, including the Czech Republic, Germany, and Australia have even advised India to opt-out of alliances with Huawei.

India- Huawei Relationship: A roller-coaster ride

Since the revelation of espionage charges, the relationship between Huawei and India has remained uncertain. In 2018, India had removed Huawei from the list of invitees in 5G trials, later re-invited it on requests, which was again rescinded. However, since 2019, Huawei India has continuously demanded a level playing field in the country which lays eyes on an ambitious 5G future.

Despite all controversies surrounding data breaches and espionage attempts by Huawei, the company has continuously offered a no-backdoor pact to the Indian government’s fear of its national security. Under this, the company will not have any back door access to the data of the users and thus prevent any breach of cybersecurity. Much before the present controversies, the company has claimed the signing of agreements with other Indian telecommunication companies with penalty clauses, in case there is any security lapse or breach on the part of the company.

Associating Huawei's participation with national security concerns is not only a result of the U.S. led war against it. The company doesn't seem to have a good record even in India as well. In 2014, Huawei was accused of hacking into the systems of BSNL, the state-run telecom carrier.

The distrust is aggravated by the cynic relationship between India and China having maintained a stalemate for decades. The Galwan clash between the armies of both the countries and a digital and economic war initiated by India by banning Chinese apps in the country has made the situation worse. Following a popular voice against banning any Chinese involvement in the country, the Indian government has already indicated towards a complete ousting of Huawei from the country's 5G plan.

Despite these concerns, India has a substantial reliance on Chinese telecom companies and has around 82% of the imports from China itself. The 5G future of India requires an estimated investment of $4 Billion. While the Indian companies struggle to make the telecom sector profitable, ruling Chinese companies out might raise the costs of setting up 5G infrastructure by 35%. With the 4G connections being heavily dependent on Chinese aid, the 5G future of India may seem a pipe dream. Reliance on European tech companies alone will not serve the interests of the country citing dependency reasons. Although India has hopes laid on Reliance Industries, which aims to roll out a 5G network soon, the plans remain vague. Further, slashing out Huawei will establish a Reliance monopoly in the Indian telecom market as most of the companies rely on massive technical support from the Chinese company.

India's national security concerns and associated laws

With 5G telecom infrastructure emerging as a crucial national security asset, it has been designated as a 'critical infrastructure' that is poised to become the root system of all other national and international infrastructures. With its ability to widen defence and intelligence arenas, the only danger faced by 5G technology is that of cybersecurity that would amount to endangering the national and security interests of the country.

The need for a 5G set up in India is evident from the prevailing circumstances in the country.. The Chinese deployment of 5G setup along the Line of Actual Control in the Galwan Valley is one such crucial circumstance. Indian intelligence agencies have registered a fear that this entire setup is vulnerable to the menace that 'weaponisation of 5G' can cause. Because the technology will interconnect all the sectors and has 200 times more attack vectors than 4G, deploying 5G without a stringent strategy would mean a leap in the dark for the country. This is the prime justification associated with pulling out Huawei from the Indian 5G plan. Notably, the founder of Huawei is former personnel of the People's Liberation Army of China and it is evident for countries to presume the company’s to the Chinese government.

Further, the Chinese National Intelligence Law of 2017 imposes sweeping obligations on the Chinese companies to revel any information asked for by the government. This is propounded by Article 14 and 7 of the law, which also requires companies to keep intelligence secrets. The government also has declared awards for any agency which contribute to national intelligence efforts, under Article 9 of the law. Further, under Article 12, to strengthen the hold on organisations, the government may also direct them to carry out intelligence-related works.

The law applies to all Chinese companies operating globally, regardless of their being public or private. Further, the Communist Party of China has an established cell in all prominent Chinese firms.

Unarguably, these obligations of Huawei go against the Indian national interests and laws. Section 66E, 66F of the IT Act, 2000 lays down punishment for violation of user's privacy and cyber terrorism by an intermediary, respectively. The penetration of Huawei into the systems of BSNL without permission was explicitly a violation of Section 66F of the Act. Further, Section 70 of the Act provides for a protected system, which essentially is a 'critical information infrastructure' and denies its access to organisations. Evidently, the introduction of 5G technology comprises the substratum of this critical infrastructure. To protect this infrastructure, the government under Section 70A of the Act establish a nodal agency and conduct research for its enhancement. In case there is a breach of confidentiality and privacy, the organisation or intermediary concerned would be subjected to some penalty.

Reforms and Suggestions

This further intensifies the need for Data Protection law, which is yet under discourse. The Personal Data Protection Bill, 2019, distinguishes between critical personal data as notified by the government and normal personal data under §33 of the Bill. Such critical data would be processed only in India and not outside the country. With data being a crucial element in the security of India and its relation with other countries, giving a flexible latitude to the government in determining ‘critical data’ seems appropriate. Evolving a 5G technology for the country requires the cooperation of both public and private sector- domestic as well as foreign. Recently, the Cyber Security and Infrastructure Security Agency of the U.S. has also released a 5G strategy to develop a secure and resilient 5G infrastructure and protect the security interests of the U.S. and its relations with allies. Given the recognition of 5G technology as a critical infrastructure, regulation and protection of privacy and data must be a priority of the government not only to protect citizen rights but also national itnerests. Hence, India must consider implementing the Data Protection Billas all stakeholders are bound to engage with the core infrastructure of our country. In this light, there is a need for India to look at the Official Secrets Act, 1923, which tends to focus only on a revelation of secret information by government servants and citizens of India under §1 (2) of the Act. Further, inter alia the statute requires the involvement of critical technological data of government in order to deter attempts of any impingement of such information.

Conclusion

Although India aims at a digital and self-reliant economy, we may infer that deploying a 5G map over the country is a pipe dream. India still lacks a proper networking of its 4G towers. With 5G networking demanding to pin more towers, it definitely requires a much greater investment. With Huawei being a cost-efficient equipment maker and a global leader in 5G technology, India definitely sits on the fence where it has to weigh national security with the national aim of development. However, before the government rolls out a concrete 5G plan and trials, it must ensure that India is ready with privacy laws to protect it from any apprehended cybersecurity breach. Hence, the need of the hour is the introduction of the Data Protection Bill. As has been stated by the Huawei India CEO, "Although Japan can afford to Huawei from its telecom market, the same is not feasible for India to have only a few partners in business." India cannot ignore its needs as its domestic market has already suffered a setback owing to the COVID-19 pandemic.


Title Image Source: 91Mobiles


This article has been written by Akanksha Vashistha. Akanksha is a second- year student at the WB National University of Juridical Sciences.