The story so far: The Telecommunications Bill, 2023, was passed in Parliament this week. When it receives the assent of the President, the Bill will replace three archaic laws such as the Telegraph Act of 1885, the Indian Wireless Telegraphy Act of 1933 and The Telegraph Wires (Unlawful Possession) Act, 1950. It aims to consolidate the law for wireless networks and Internet service providers, and simplify the process of application for licences and permits for telecom operators.
What is the Telecommunications Bill, 2023?
The Bill governs authorisation of telecommunication networks and services, provides for auctioning as well as administrative allocation of spectrum, defines the mechanism for exercising the right of way for laying telecom infrastructure such as cables in public as well as private property. It also spells out emergency measures the government can take in the interest of national security and public safety such as intercept messages, suspend telecommunication services as well as take temporary possession of any telecommunication service or network. The Bill also states that rules will be framed to protect consumers with the setting up of a ‘Do Not Disturb’ register to ensure they don’t receive a specified class of messages without prior consent.
Editorial | Incoming call: On the Telecommunications Bill, 2023
The Bill governs a whole host of services, including over-the-top services such as WhatsApp, Telegram and email services like Gmail through a broad definition for ‘telecommunication’ which is given 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.” This vast definition entails that every internet app within India has to comply with the law. The Bill also marks a shift from a licensing regime to an authorisation regime, where all telecommunication services in India “shall obtain an authorisation from the Central Government, subject to such terms and conditions, including fees or charges, as may be prescribed.” Anyone who offers a service without authorisation will face an imprisonment of up to three years, or a fine of up to ₹2 crore.
The Bill allows the government to assign spectrum for telecommunication through auction except for entities listed in the First Schedule for which assignment will be done by administrative process. The First Schedule includes entities engaged in national security, defence, law enforcement and crime prevention, public broadcasting services, disaster management, promoting scientific research and exploration, as well as Global Mobile Personal Communication by Satellites such as Space X, and Bharti Airtel-backed OneWeb, which had been pushing for administrative allocation. In order to ensure the efficient use of spectrum, the Central government can also re-farm or harmonise any frequency. It can also assign part of a spectrum that has already been assigned to one or more additional entities, known as secondary assignees, and even terminate assignment where a spectrum or a part of it has remained underutilised for insufficient reasons.
What are the concerns over the Bill?
According to critics, the new Telecommunications Bill, 2023, is draconian and provides a legal architecture for mass surveillance and internet shutdowns. Among its several contentious clauses is the requirement that all users have to be identified through the use of “verifiable biometric based identification as may be prescribed” by telecommunication service providers. Further, it requires that no user shall furnish any false particulars or suppress material information. This could impede whistle-blowers as well as journalists who operate under anonymity. If users fail to comply, they will be charged a hefty penalty from ₹25,000 to ₹1,00,000 for some provisions.
Most of the contentious provisions are contained in Chapter IV, which grants emergency powers to the Central government in the interest of public safety and national security. Section 19 (f) empowers the Central government to notify “standards and conformity assessment measures” in respect of encryption and data processing in telecommunication, which has raised eyebrows given that most internet communication is increasingly being pushed towards encryption to evade national state surveillance programmes. The government’s interest in breaking up encryption of WhatsApp and Signal has to be seen in the backdrop of a controversy over Israeli company NSO Group’s Pegasus spyware targeting 300 mobile phone numbers for illegal surveillance, including those of serving Ministers in the Narendra Modi government, Opposition leaders, lawyers, activists and journalists.
It also allows the Central or a State government during a public emergency, including disaster management, and in the interest of public safety to take “temporary possession of any telecommunication service or network”. It can take over control and management of such services or networks. It can intercept messages on the pretext of “preventing incitement to the commission of any offence”, and direct suspension of telecommunication services in such circumstances like the shutdown of Internet seen in Manipur and Jammu and Kashmir. Press messages too can be intercepted or stalled in these circumstances.
How has the industry received the Bill?
The Digital Infrastructure Providers Association (DIPA) and the Cellular Operators’ Association of India have welcomed the provisions in the Bill that bring uniformity across States in terms of ‘right of way’ rules and regulations, along with rates. These, they say, will also address long-standing issues for telecom infrastructure providers, including capping of charges, and deployment of telecom infrastructure on private property. The telecommunication network is not considered part of the property for transactions or tax purposes, and hence the Bill is also welcomed for providing relief to the infrastructure industry from the additional exorbitant tax burden. Clarifications and specification of penalties have also been lauded by the industry.
The Indian Space Association has thanked the government for including satellite-based communication networks for allocation of spectrum by administrative method. It says that the move will “help spur growth in the nascent space sector, foster healthy competition, ensure a level playing field for all stakeholders involved, promote global cooperation and also help drive innovation, create opportunities for start-ups, and strengthen the country’s position in the global satellite market.” But an international group of organisations and experts such as the Signal Foundation, the Internet Freedom Foundation and the Internet Press Institute have written to Telecom Minister Ashwini Vaishnaw and underlined that interception of message will enable “indiscriminate surveillance” and weaken online safety for individuals, business and governments. Additionally, by allowing the government to notify standards on encryption without any limitations, the groups say that the Bill creates uncertainties around the ability of service providers to offer strong encryption, and develop privacy-respecting innovations. “This will have an impact on both human rights in the digital age, as well as trust in digital services offered in the Indian market.”
The authority to suspend the internet has been granted without dwelling over procedural safeguards recommended by the Supreme Court as well as the Parliamentary Standing Committee on Information and Technology. It is feared that these measures will impact human rights as well as trust in digital services offered in the Indian market. The groups have, therefore, demanded that the Bill be withdrawn in its current form.
