New Delhi: Consultations will soon begin on the draft of a new telecommunications law that seeks to give the government the power to monitor every message or anything spoken, written, read, heard or received via WhatsApp, Signal, direct messages on Facebook or Twitter, Zoom calls, Google Meet calls, discussions on Twitter Spaces, Clubhouse, messages on ham radio and all other means of communication.
The proposed new law may also require licences for OTT (over-the-top) services, such as Netflix or Amazon Prime, and significantly dilute the powers and role of the independent telecom regulator, in an apparent conflict of interest since the government itself runs telecom services.
These are some of the powers that the government, through the Department of Telecommunications (DoT) under the union ministry of communications, has sought to give itself through the draft Indian Telecommunication Bill introduced in September 2022.
This bill seeks to replace India’s existing legal framework in the telecommunication sector, which predates the Internet and modern mobile phone technology by decades. It will take the place of the Indian Telegraph Act, 1885; The Indian Wireless Telegraphy Act, 1933; and The Telegraph Wires (Unlawful Possession) Act, 1950.
According to the DoT, the draft bill aims to develop, through a public consultative process, a “modern and future-ready legal framework” in telecommunication, address such as spectrum management; right of way (for setting up telecom towers, laying cables, resolving disputes, etc); ensuring regulatory certainty and promoting investments in the sector. The latest advisory set 20 November 2022 as the final date for stakeholders to send comments on the draft bill.
While existing laws referred to the “telegraph” and “telegraph officer” (the world’s last telegram was sent by Bharat Sanchar Nigam Ltd in 2013), the draft bill’s definition of what now comes within its ambit is extensive.
This will include broadcasting services, e-mail, voice mail, voice, video and data communication services, as well as audiotex services (voice processing technology such as pre-recorded messages), videotex services (interactive content displayed on video monitors, using modems to send data), fixed and mobile services, Internet and broadband services.
It will also include satellite-based communication services, Internet-based communication services, in-flight and maritime connectivity services, interpersonal communications services (including traditional voice calls and messaging services), machine to machine communication services (technology that enables devices in a network to exchange information without human intervention, facilitated by artificial intelligence or machine learning).
Additionally, it will include over-the-top (OTT) communication services (services that bypass traditional distributors, reaching users by riding ‘over the top’ of Internet connections, such as on-demand video or video calling).
Yet, the new bill retains many provisions of the 137-year-old Indian Telegraph Act, which gave the government overarching powers in matters such as seizure of telegraphs or interception of messages, and the new provisions do not address concerns around user privacy, threats to end-to-end encryption and opaque provisions enabling Internet shutdowns.
In addition, experts told Article 14 that the sector’s regulator, the Telecom Regulatory Authority of India (TRAI), would be less independent and have almost no role in licensing and future planning, in contrast to the international trend of a stronger independent regulator with shrinking government role in sector regulation.
Experts and researchers studying data privacy and public regulation of communication industries said they hoped the draft would go through wide consultation before being introduced in Parliament.
Expansion In Centre’s Power
Over the years, the three existing legislations on telegraphy were used to regulate modern telecommunications sector issues in India including connectivity, access and Internet shutdowns, all subjects beyond the scope and intent of these laws.
While the new draft bill attempts to end this by introducing definitions and rules for the digital space, the government’s exclusive privileges have been extended to all telecom services in the country, from the power to licence service providers to requiring OTT services, such as Netflix and Amazon Prime, to apply for licences.
This is almost exactly as per the Indian Telegraph Act, through which the government reserved ‘exclusive rights’ under section 4 to establish, maintain and work telegraphs in the country, as well as to take temporary possession of telegraphs for violations. In fact the draft bill shares several similarities with the Indian Telegraph Act.
Through a broadened definition of what services fall within its ambit, the new bill expands the scope of the powers of the union government.
Independent Regulator’s Role Diluted
The TRAI is the Indian telecommunications sector’s independent regulator, coming into existence after the enactment of the TRAI Act, 1997.
The TRAI acts as an unbiased entity to ensure that the rights of telecom users are protected and that competition remains fair.
Under the new draft bill, the role of the regulator is amended to curb or delete its powers to finalise terms and conditions of service providers’ licences; to recommend revocation of a licence for non-compliance with terms; or to suggest measures to facilitate competition and efficiency in the sector.
With these powers revoked, under the draft bill, the TRAI would be left with no say in licensing.
“This is a seriously retrograde step,” said Mahesh Uppal, PhD, director of ComFirst India, a New Delhi-based consultancy. “At this time we need specialist inputs from competent regulators.” He said it was “particularly worrying” because these powers of the TRAI had in fact been expressly introduced through an amendment to correct lacunae in the original of the TRAI Act.
When the TRAI Act was passed in 1997, the government was not obliged to consult the regulator on licensing decisions. The new telecom policy of 1999 introduced this additional role for the regulator, made official with the TRAI (Amendment) Act in 2000.
According to sector experts, the TRAI may hold only recommendatory powers, but under the new draft, it would not have a role to play at all in matters such as licensing, measures to facilitate competition and technological improvements required in the sector.
“There is a need for orderly growth of the sector, for which TRAI has a particular mandate,” said Uppal. “And if the regulator does not have enough say in the entry of players and technology in the market then that role is compromised.”
As a result of these deletions, the government’s say would increase in these matters; matters in which the government is not just a regulator but also a market player. Thus in turn undermine the prerogative of the regulator to be an independent voice. The global trend is for the government’s role to reduce and not increase, while the bill stands for the role to expand and increase, says Dr. Uppal.
The TRAI’s powers prior to the deletions and amendments as per the new bill have been found by sector experts and former TRAI officials to be inadequate as compared to its other international counterparts (see here and here).
The responsibilities that the TRAI has held are in fact among the most widely accepted regulatory objectives for a telecom regulator.
People’s Interests Not Protected
Clause 24 (2) of the draft telecom bill (provisions for public emergency or public safety) gives the government powers to intercept or detain any class of messages, a provision that also existed in section 5 (power to take possession of licensed telegraphs and to order interception of messages) of the Indian Telegraph Act.
Under the new bill, this provision would require platforms such as WhatsApp to comply with government orders for interception of messages. According to Access Now, a US-based digital rights group, in order to implement traceability, the core principles of end-to-end encryption offered by messaging platforms are adversely affected.
End-to-End encryption is a process to secure messages requiring a special combination that lies only with the recipient and sender of every message, as per WhatsApp. Messaging applications such as WhatsApp and Signal use such encryption to protect privacy on the platforms from third parties.
Along with compromising user privacy, this provision in the draft bill could result in heightened surveillance of users.
The draft bill also requires, through chapter 3, clauses 4 (7) and 4 (8) respectively, that companies hold information about ‘who’ they provide services to, and to identify the sender of a message.
Ostensibly, such a move could curb spam calls, messages / texts, but concerns around user privacy require more deliberation to ensure that a balance is struck, said Abhishek Raj, a researcher at the Center for Internet & Society, a non-profit that undertakes interdisciplinary research on Internet and digital technologies from policy and academic perspectives.
In order to identify ‘who’ is sending a message or using a service, it is likely that some sort of data will have to be collected, and the draft does not address how data collected in this manner or for this purpose will be regulated.
These concerns have become stronger because India does not have a data protection law yet, said Tejasi Panjiar, an associate policy counsel at the Internet Freedom Foundation, a non-profit.
“Do I have the right to be forgotten, do I have the right to erasure, the right to deletion?” Panjiar said. “ These rights should be available to me, and in the absence of a data protection law the harms to me as a user are amplified.”
She said until the rules for such a measure are notified, it would remain uncertain what kind of user verification procedures will be mandated, but they could look like the mandatory KYC (Know Your Customer) protocol, Panjiar said.
Applications that have virtually no onboarding procedures at the moment may be mandated to enforce such measures.
Internet Shutdowns For ‘Public Safety’
Under provisions for ‘public emergency’ or ‘public safety’, the draft bill gives the government the right to suspend telecommunications networks. The government may “take temporary possession of any telecommunication services, telecommunication network or telecommunication infrastructure from a licensee or registered entity,” it says.
Under the same provision, the government is also empowered to enforce Internet shutdowns “..in the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence…”
While freedom of expression on the Internet is protected under Article 19 of the Indian constitution, the article provides provisions for “reasonable restrictions” under Article 19(2), and it is under these restrictions that Internet shutdowns are justified in India.
According to non-profit Indian legal services organisation Software Freedom Law Center, Jammu & Kashmir has seen more Internet blockades than any other state in the country. In fact, over 70% of the world’s Internet shutdowns were recorded in India, with the longest blackout in Jammu and Kashmir (J&K) in 2019, as Article 14 has reported.
The number of Internet blockades—defined as ‘state-imposed blanket bans on access to Internet services, either mobile or fixed line’—recorded by the Software Freedom Law Center’s Internet tracker stood at 418 between 2012 and 16 November 2022 in J&K alone.
As per the Indian Council for Research on International Economic Relations’s report, the economic impact of Internet shutdowns in J&K for 2017 alone, totalling 1428 hours, was to the tune of US$ 223.03 million.
All e-commerce, including activities related to delivery of medicines, tele-consultations and testing labs, were rendered defunct during these shutdowns. Further, the inability to access online education was a significant drawback for students across J&K (here and here).
Isolation from friends and family on account of a communications blockade also has a significant impact on mental heath of people.
Until now, these shutdowns were enforced under the provisions of the Temporary Suspension of Telecom Rules, 2017. These rules were meant to be a more progressive and transparent system but actually borrowed their powers from the Indian Telegraph Act.
Prior to these rules, Internet services were suspended under section 144 (against unlawful assembly) of the Code of Criminal Procedure, 1973.
The Parliamentary standing committee on communications and information technology, in its December 2021 report on suspension of telecom and Internet services, noted that Internet shutdowns were being ordered based on “subjective assessment” and that “no parameters” had been laid down to decide the merit of a proposed Internet shutdown.
The committee highlighted that definitions of terms such as ‘public emergency’ and ‘public safety’, used as the basis for enforcing Internet shutdowns, were not defined in the 2017 rules or in the Indian Telegraph Act.
“State governments are exercising their own judgement to decide the merits of the situation to impose internet shutdown,” it said. As a result, while a shutdown is to be ordered strictly on grounds of ‘public emergency’ or ‘public safety’, “governments have resorted to telecom/Internet shutdown on grounds not so pressing and have been regularly using this as a tool for routine policing and even administrative purposes…”
Internet shutdowns in India have been imposed for reasons ranging from preventing cheating in the Rajasthan eligibility exam for teachers in 2021 to suspected misuse of the Internet by alleged anti-social elements during Muharram in J&K in 2022.
The circumstances necessitating shutdowns are similar to those cited in the Indian Telegraph Act, with no attempt in the draft bill to rationalise the merits of such shutdowns.
The standing committee in 2021 urged the government to review the telecom suspension rules of 2017. “The committee recommends the department to review the relevant sections in coordination with the ministry of home affairs and the ministry of law and justice to address all aspects of telecom/Internet shutdown in the country,” its report said.
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(Preeksha Malhotra is a media scholar and freelance journalist based in Delhi. She has an MA in media governance from the Center for Culture, Media and Governance, Jamia Millia Islamia.)