India’s Draft Telecom Bill 2022: A New Ploy To Justify Surveillance & Shutdown?

WhatsApp and Signal, which deploy end-to-end encryption may need to either not transmit messages or intercept them.

Rather than a sincere reform of surveillance provisions, “it replicates the colonial moorings of the Telegraph Act, 1885 by transplanting essentially the same provision onto this new Bill and ultimately fails to be the custodian of India’s telecommunications sector in the 21st century.” 

(Photo: Namita Chauhan/The Quint)

(This article was first published on 27 September 2022. It has been reposted from The Quint's archives after the Telecommunications Bill, 2023, was recommended to be introduced in the Lok Sabha.) 

On 15 August, during his speech to commemorate India’s 75th independence day, Prime Minister(PM) Narendra Modi made an impassioned appeal from the ramparts of the Red Fort to “liberate ourselves” from the vestiges of colonialism. On 8 September, during the unveiling of the Kartavya Path, the PM reiterated his appeal to shed colonial mindset. However, the new draft Indian Telecommunication Bill that seeks to replace the British-era Telegraph Act, 1885, not only fails to undo its draconian surveillance provisions but also retains the words and spirit of the colonial act in parts of the new framework.

The draft Indian Telecommunication Bill, 2022, released by the Department of Telecommunication (DoT) under the Ministry of Communication, seeks to replace three existing Acts -- Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1933, and The Telegraph Wire (Unlawful Possession) Act,1950.

There are three aspects of the new proposed framework that stand out as major concerns and threaten the fundamental rights of Indian citizens. Firstly, widely expanded definitions of telecommunication and licence requirements for internet-based applications. Secondly, threats to online privacy and the undermining of strong encryption and surveillance concerns and lastly, the provisions to suspend the internet at a time when India already suffers the highest number of internet shutdowns in the world. 

What’s ‘New’ in the Telecommunication Bill?

According to the Explanatory Note published by the Ministry along with the Bill, “India needs a legal framework attuned to the realities of the 21st century.” The Note states that India, today, has a telecommunication ecosystem of 117 crore subscribers, employs 4 crore people and, that the sector contributes around 8 percent of the nation’s GDP.  

The Explanatory Note states that “The existing regulatory framework for the telecommunication sector is based on the Indian Telegraph Act, 1885." The nature of telecommunication, its usage and technologies have undergone a massive change since the era of 'telegraph'. Given that “We now live in the era of new technologies such as 4G and 5G, Internet of Things..” the country needs a comprehensive legal framework that reflects the nature and needs of 21st century telecommunication.

However, legal and industry experts say, the Bill appears to be primarily concerned with the commercial opportunities of the sector while undermining the Constitutional and democratic principles of communication. This undermines citizens’ right to privacy, freedom of expression and equitable access to telecom services, especially on the internet. 

Is the Bill Inclusive or Does It Reinforce Licencing?

Chapter 2 of the Bill deals with definitions and incorporates some major expansions to the existing definitions of telecommunication services. As per Clause 2(21), “Telecommunication Services'' also includes  “Over-The-Top (OTT) communication services”. This expands the definition widely to include all instant messaging, video, call applications like WhatsApp, Zoom, Telegram, Signal that run as services over the internet using data. 

Moreover, Chapter 3, which deals with Licensing and Registration grants the Central Government the “exclusive privilege” to “provide telecommunication services”, operate networks and issue licences to telecom service providers. Since online Over the Top (OTT) platforms have also been swept up in the definitions they may also have to seek licences to operate in India. 

This licence regime, in turn, is likely to have two consequences. First, the cumbersome KYC process where users will have to register for usage as they do for SIM cards and phone connections. A presentation made on 23 September by Telecom Minister Ashwini Vaishnaw states that it is “the duty of the user to give correct KYC information”.

This is a deep concern from a surveillance and freedom of speech aspect as well. Second, this may also spur data localisation demands, one that has been a controversial provision in the now withdrawn Personal Data Protection Bill, 2019. 

Is Right to Privacy a Myth?

The bill seeks to provide a legal framework that reflects the true spirit of communication infrastructure and services in 2022. Yet, it appears to have ignored appeals for surveillance reforms including the landmark ruling in 2017 by the Supreme Court, affirming the right to privacy as a fundamental right enshrined in Article 21 of the Constitution of India. 

Chapter 6 of the draft Bill provides for messages or communication over any telecommunication services to be intercepted and disclosed in the event of a public emergency. Given that OTTs have also been defined as telecom services under a new proposed bill, industry stakeholders have raised the concern of end-to-end encryptions being weakened or possibly broken in order to intercept the communications.

Applications like WhatsApp and Signal, which deploy end-to-end encryption in its messaging services may be required to either not transmit messages or intercept them. 

The Internet Freedom Foundation,(IFF) in its blog, also highlights that “Encryption is also undermined by Clause 4(7) and 4(8) of the Bill, which require licenced entities to “unequivocally identify” all its users, and make such identity available to all recipients of messages sent by such user.” It is important to remember that assaults on strong encryption protection have also been made by the Centre in Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in its “traceability” clause where it requires significant intermediaries to identify the first sender of a message.

Therefore, rather than a sincere reform of surveillance provisions, IFF’s blog states that “it replicates the colonial moorings of the Telegraph Act, 1885 by transplanting essentially the same provision onto this new Bill and ultimately fails to be the custodian of India’s telecommunications sector in the 21st century.” 

India Leading the Global Internet Shutdown Index

As far as leading the world goes, Indians suffer more internet blackouts than citizens of any other nation of today. India is indeed the internet shutdown capital of the world, with at least 683 shutdowns in the decade since 2012, according to internetshutdowns.in which tracks suspension of services. In the last five years, since 2018, India has suffered at least 543 shutdowns. That amounts to over a 100 internet blackouts annually. 

The draft telecom bill provides a clear legal provision for the suspension of internet services in chapter 6. Internet access has often been suspended on flimsy grounds such as to prevent cheating while conducting examinations to democratic protests taking place in an area.

Under Clause 24(2), on the occurrence of any public emergency or in the interest of the public safety, the Central Government or a State Government can order the suspension of communication services on any telecom network can be suspended. Internet shutdowns are a threat to an open and free internet and also cause immense economic losses amounting to billions of dollars. 

In conclusion, the draft Bill in its present form, while vague on certain provisions, points towards the general direction in which the Centre wants to take telecom sector and its regulation. The Bill is open for comments till 20 October and a long path followed before it reaches the Parliament. However, as India embarks on its amritkaal phase with liberation from colonial mindset as one if its five resolves, the Bill would do well to heed it. 

(Sushovan Sircar is an independent journalist. He tweets @Maha_Shoonya. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)