The Telecommunications Bill 2023, introduced in the parliament on Monday (18 December), seeks to give the central government far-reaching powers in the control and regulation of communication networks. Although the bill has not explicitly mentioned internet-based communication services in its ambit, the vague definitions used in the legislation will have possible implications on online services like WhatsApp, Gmail, Zoom, etc.
The new telecom bill is the long-awaited replacement of Indian Telegraph Act (1885), the Wireless Telegraphy Act (1933), and the Telegraph Wires (Unlawful Possession) Act (1950).
The bill was introduced in the Lok Sabha by Union Minister of Communications Ashwini Vaishnaw as a money bill on Monday. In an earlier avatar of the bill, in 2022, it had clearly included online communication services within its purview. However, this time, the bill defines telecommunication as “transmission, emission or reception of any messages, by wire, radio, optical or other electro-magnetic systems, whether or not such messages have been subjected to rearrangement, computation or other processes by any means in the course of their transmission, emission or reception”.
Experts note that this definition does not conclusively rule out internet-based messaging and call services. “The broad definitions of terms such as "message" and "telecommunication" create the potential for the act's provisions to extend to internet-based communication services. This raises concerns about increased regulatory burdens and potential redundancy, as such services are already subject to regulation by the Ministry of Electronics and Information Technology (MeitY) and sectoral regulators,” said Sumeysh Srivastava, senior manager at The Quantum Hub (TQH).
A clarification on the definition is required to prevent regulatory ambiguity and uncertainty, suggested Ayush Tripathi, senior programme manager at public policy firm The Dialogue. He said, “...because the internet infrastructure uses electromagnetic systems to transmit messages it may potentially fall within the scope of 'telecommunication'. The definition is still broad and may encompass internet services at a later stage even if currently it is not the intention of the government.”
The broad definition may also have an impact on new developments within the internet ecosystem. Srivastava added, “The expansive definition may lead to the extension of telecom licensing to OTT services, potentially stifling innovation, impeding market entry and increasing costs of doing business.”
The concerns around the Telecom Bill interefering with online communication services become more relevant given the provisions on public emergencies included in the bill.
Special Powers And Surveillance Concerns
The bill includes provisions that would give the Centre powers to temporarily take over and manage telecom networks in the interest of ‘national security’. During situtations deemed to be public emergencies, the Centre or state governments may direct any message transmitted over telecom services to not be transmitted, intercepted, detained, or disclosed in intelligible format.
The Centre can also make new rules to allow for the collection, analysis and dissemination of traffic data that’s stored in telecom networks, according to provisions included in the bill. Simply put, this allows the central government to gather information on the type, route and duration of messages transmitted over telecom services.
Under clause (20) of the bill, the governments can also call for the suspension of any telecommunication service for reasons to be recorded in writing. “The Bill misses an opportunity to reform draconian telecom suspension & surveillance power – leaving the duration & manner of shutdowns and interception to delegated legislation without an anchoring criteria,” the Internet Freedom Foundation stated on X, regarding the clause on suspension of services.
Another point of concern could be the bill’s position on encrypted communication. Under clause 19, the bill seeks to give the Centre the power to notify standards on encryption and data processing. “The rationale behind this move might be to ensure higher and uniform level of security and safety standards in encryption, however, without any explicit mention of these standards, it would raise concerns over ambiguous interpretation leading to severe implication on privacy rights of the individual and business uncertainty,” said Tripathi.
Currently, online messaging platforms such as WhatsApp and Signal provide encrypted services to users in India, allowing for secured communication that is accessible to only the sender and intended recipients.
Authorised Services And Verified Users
An important aspect of the bill is the introduction of authorisation criteria. According to the bill, to provide telecom service or operate any telecom network, authorisation from the central government will be required. Further, all authorised entities will have to identify its users through verifiable biometric based identification.
In the case of conventional telecom service providers such as Jio, Airtel or Vodafone Idea, the biometric enabled identification will help in curbing fraudulent SIM connections. But if the legislation is extended to internet services, there could be implications on user privacy.
“This [biometric identification] could lead to privacy concerns and exclusion, and perhaps even affect anonymity on the internet if applied to internet-based services,” said Srivastava.
Despite the double-edged nature of anonymous internet use, Tripathi pointed out that anonymity is often important in cutting down online harassment. “There is a good body of research that indicates that policies reducing online anonymity affect marginalised communities more than people who are closer to power. It’s a medium to voice opinions without the fear of facing harassment and building anonymous support groups. Such provisions not only widen the digital divide but also disproportionately prevent digital newcomers from accessing the internet safely and anonymously,” he said.
Other Key Takeaways Of The Bill
The new Telecom Bill decisively ended the long-standing debate on spectrum assignment for satellite internet by opting for administrative allocation route. This means that firms keen on providing satellite internet in India, such as Reliance Jio’s JioSpaceFiber, Elon Musk’s Starlink, Bharti group backed OneWeb and Amazon’s Kuiper, would not have to take part in any auctions to access the required spectrum.
To protect consumer interest, the bill also mandates that sending of promotional messages would require prior consent of users. The bill also seeks to establish an extensive dispute resolution mechanism for solving disputes between authorised entities and their users.
Chapter VI of the bill calls for the central government to create regulatory sandboxes which can be used as live testing environments for testing new products and services on a limited set of users with certain relaxations from other provisions of the bill.
The Universal Service Obligation Fund created under the 1885 Telegraph Act will now be renamed as "Digital Bharat Nidhi" as prescribed in the new telecom bill.