The draft Indian Telecommunication Bill, 2022 (Telecom Bill) — published for public consultation on September 21, 2022 — aims to create a legal framework attuned to the realities of the 21st century to ensure India’s socio-economic development. This Telecom Bill follows the release of the consultation paper, “Need for a new legal framework governing Telecommunication in India”, which was published on July 23, 2022. However, it fails to let go of the colonial moorings that have shaped the law around telecommunications in India for the past century.
Instead, it represents multiple squandered opportunities for significant legislative reform. The Telecom Bill misses the opportunity for the democratisation of telecommunication services. Now, it has preferred a move towards centralisation of power through its new licensing regime. Here, the Telecom Bill also fails to inculcate the learnings evolved in courts and other institutions of authority, and instead repackages the provisions from pre-Independence laws to pass them off as legislative advancements. This is in lieu of enacting sweeping legislative reform which would cement user rights as the cornerstone of the Indian telecommunication sector.
The Telecom Bill will usher in a wave of stricter regulations and centralised power by introducing licences for telecommunication services. The definition for such services has been significantly expanded under Clause 2(21) of the Telecom Bill to include online communication service providers such as WhatsApp, Apple Watch, Jitsi, etc. Such a move reflects historical baggage and flows from a long-standing argument and demand made by large telecom companies (‘telcos’) to bring online communication services under regulation for a ‘level-playing field’.
Threat to innovation, privacy protection
The argument that over-the-top (OTT) services are a “substitute” of the services provided by telcos, often termed as the “same service, same rules” argument, is flawed as the two have inherently different functionalities. For instance, while telecom operators act as the gatekeepers to the underlying broadband infrastructure, OTT services can only be accessed through telco-controlled infrastructure. Introduction of OTT communication services under the ambit of telecommunication services is illustrative of a reductionist approach, wherein the diverse services provided by such OTT service providers such as social networking and video calling are aggregated, stripping it of its richness. Such a move may lead to uncertainty in treatment, build ad hocism, and pose overbearing compliance and legal costs on service providers, having deleterious effects on innovation.
On September 14, 2020, the Telecom Regulatory Authority of India (TRAI) issued recommendations on OTT regulation, which were broadly supportive of user choice and the demands raised mainly by digital rights organisations against placing regulatory burden on Internet communication services. However, the Department of Telecommunication (DoT) did not recognise these positive recommendations and also further diluted TRAI’s responsibility of providing recommendations to the central government prior to issuing licences under Clause 46. Moreover, the central government may, in exercising its exclusive privilege to issue a licence, require such online service providers to store data locally, in India. Such a data localisation requirement confers excessive discretion to the Government, and adversely affects the privacy of individuals.
Further, the expansion of the definition of telecommunication services to include OTT communication services, coupled with the requirements for interception under Clause 24(2)(a) may signal the death knell for end-to-end encryption (E2EE) in India. While previously Section 5(2) of the Indian Telegraph Act, 1885 authorised interception of messages transmitted through telegraphs, this has not halted attempts, regardless of success, by the executive to expand the provision to include OTT communication services such as Whatsapp and Signal.
Indeed, there is ongoing litigation before the Supreme Court of India in which the traceability requirement of the Information Technology Rules, 2021 is under challenge. However, the Telecom Bill formalises these attempts of the executive to bypass the privacy protecting practice of E2EE and requires OTT communication service providers such as Whatsapp and Signal to intercept or disclose any message or class of messages to the authorised officer. These attempts are in stark contrast with the recommendations and learnings evolved in the last decade by the Supreme Court in its right to privacy decision (2017) and the Justice B.N. Srikrishna Committee Report on data protection (2018). Both of these signalled the urgent need for reform of the existing surveillance framework in the country due to its lack of independent oversight and propensity for misuse.
Suspension of net services
Replicating this failure to learn from knowledge accumulated post-Independence, Clause 24(2)(b) of the Telecom Bill lays down, for the first time, a specific power for suspension of Internet services (Internet shutdowns). In addition to the impact Internet shutdowns have on the fundamental right to free speech of citizens, the high economic costs of such shutdowns have also been consistently raised as a criticism. Here, the Telecom Bill, which recognises socio-economic growth as one of its stated objectives, fails to take sufficient steps to deliver on its promise. The clause does not solve any of the issues that exist with the current framework for Internet shutdowns in India, specifically the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. Learnings and recommendations from the Supreme Court’s decision in 2020 in Anuradha Bhasin vs Union Of India and the 2021 report of the Standing Committee on Information Technology find no place in the Telecom Bill.
The opportunity for significant legislative reform has been squandered not just for surveillance and Internet shutdowns but also for net neutrality. India has in the past adopted an indigenous and progressive approach towards net neutrality. However, we are today missing an opportunity to set global standards by not introducing principles of net neutrality in the Telecom Bill. DoT is inviting comments from the public till October 20, 2022. This is a bill that impacts everyday Internet users, their choices and safety. Thus, it must be engaged with widely.
Anushka Jain is Associate Policy Counsel at the Internet Freedom Foundation, New Delhi. Tejasi Panjiar is Associate Policy Counsel at the Internet Freedom Foundation, New Delhi