New India Telecom Bill, same old concerns

By Anandita Mishra, lawyer at the Internet Freedom Foundation

The draft Indian Telecommunications Bill, 2022 and its impact on the right to privacy, access to internet and government control of online spaces has raised considerable concern among users, civil society and the industry. But these issues have plagued the telecom sector for decades.

Until 1997, India’s telecom regime was largely governed by the 19th-century colonial law codified by the Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933 and the Telegraph Wires (Unlawful Possession) Act, 1950. The Telecom Regulatory Authority of India Act, 1997 marked the last major overhaul in the sector.

Since then, the industry has seen exponential growth – tele-density increased from 1.9% to 85.03% and the subscriber base from 14.8 million to 1.17 billion. Yet the telecom regulatory framework has continued to remain largely the same, with key issues being duplication of the role of regulators, excessive government control and concerns around user rights and transparency.

In 2001, the Convergence Communications Bill sought to bring telecommunications and broadcasting services under one common regulator. But the key issues in the telecom sector continued to remain a point of concern. In a blow to privacy, Clause 66 reaffirmed, and even broadened, the provisions of the Telegraph Act 1885 by allowing interception of any communication on any network service on the grounds of public emergency or other specified situations.

It, in fact, required service providers to “extend all facilities and technical assistance for interception”, an obligation similar to the one incorporated much later in the Interception and Decryption Rules, 2009 for intermediaries. The 2001 bill also allowed state interference through directives on licensing and registration.

Twenty years later, the Indian Telecommunications Bill, 2022 is nothing but an attempt to consolidate and further the government’s long-standing intention of retaining control and ignoring user privacy. It expands the definition of telecommunication services to bring video, data, internet, broadband, interpersonal, machine to machine and over-the-top (OTT) communication services under its licensing regime. This is basically the entirety of human communication.

The Telecom Bill also retains provisions for stopping transmission, allowing interception and disclosure of messages by telecommunication services or networks, and goes one step further by requiring them to “unequivocally identify” all its users in a manner that will be prescribed. It also grants wide and discretionary powers to the government to issue directions on the “use of telecommunication services, telecommunication network and telecommunication infrastructure” in the interest of national security.

The increasing ambit of licensing makes the Telecom Bill more dangerous than the previously proposed draft legislations. Almost all countries employ a licensing regime in the telecom sector, breach of which may lead to revocation of a licence and/or imposition of penalty. However, the stringent regime envisaged under this Telecom Bill mandates lower privacy standards than a service provider may otherwise adopt, and retains unilateral power to amend the terms and conditions at any point, creating commercial and legal uncertainty.

As a result of the interception, disclosure and identification provisions, OTT communication service providers like WhatsApp and Signal may be required to break end-to-end encryption, making the platform less secure for users. The Telecom Bill also fails to demarcate between large and small service providers, which disproportionately increases licensing and compliance costs for smaller service providers.

The bill also retains the provisions of the centuries-old Telegraph Act which used by governments to suspend internet services, providing them a free pass to shut down the internet. Finally, empowering the government to issue directions on the use of telecom services in the interest of “national security” - a term that is loosely used to impose draconian restrictions on free speech, deny requests for information on surveillance, and escape accountability for the use of spyware such as Pegasus - can have grave consequences in the absence of any oversight mechanism.

In a missed opportunity, the Telecom Bill borrows largely from the same four statutes it seeks to repeal, and issues of privacy, arbitrary internet shutdowns and government control remain a cause of concern. A licensing regime can be used as a tool to foster best practices across the sector, with key licensing conditions being provided in the statute rather than a licensing contract that the government can amend unilaterally. Such an approach will address issues of transparency and provide an opportunity to the government to lay down standards for an achievable and secure telecom environment that would mandate service providers to respect the fundamental rights of users.