The Telecommunications Bill, 2023, passed by both houses of parliament, is another action to cement authoritarian control over the rights of ordinary citizens. Its impact will be felt directly in four clear ways.
First, there is a clear power for the Union government to regulate and license OTT services such as WhatsApp, Signal, Gmail etc. Here, the unfounded hope and the underserved servility in statements that OTT regulation is excluded from the ambit of regulation of the Telecommunications Bill, 2023, is not borne out from its text. The Union government may prescribe licence conditions that may vary as per “telecommunication service” [Section 3(1)(a) and Section 3(1)(b)] and require prior registration that may be used for the government to weaken privacy and increase snooping in future. While the phrases “OTT”, “Messaging Services” or even “Email” are not expressly mentioned in the Telecommunications Bill as in the draft version, they at the same time have not been expressly excluded from the definition of “telecommunication service” which means, “any service for telecommunication” [Section 2(t)]. Further, the phrase, “telecommunication” is defined to include, “transmission… or reception of any messages…” Hence, internet-based messaging and email services are included.
Second, the Telecommunications Bill, 2023 extends colonial powers of interception of your communications without any safeguards. This is first done through powers to notify standards and conformity assessments that will include encryption [Section 19(f)]. This may even be under grounds of national security [Section 21]. Encryption is a technology that is used in internet-based messaging to ensure that only the sender and receiver read the message in plain text. Any person snooping in on the message during transmission cannot read it. However, standard setting powers may be used to create backdoors, introduce message traceability (identifying the author of a message), or to create block lists of words (as is done in China on WeChat). This becomes clearer when you look at the powers of interception that require intercepted messages to be disclosed in an “intelligible format” [Section 20(2)]. There are no procedures and safeguards in the text of the law and the existing procedure under Rule 419-A of the Telegraph Act, that has been abused, will continue [Section 61]. For instance, the Government of India even now refuses to provide aggregate data on the number of interception orders that it issues. It is a completely unaccountable and secretive system of surveillance without any oversight by courts or Parliament, that is being made more severe without any reform.
For those stating that the present Telecommunications Bill, 2023 contains exemptions for “press messages”, I encourage you to read more carefully. While it does create a sub-classification for “correspondents accredited with the Central or State Government”, it does not offer any heightened protection (such as an additional procedural safeguard or reason) for the same conditions [Section 20(3)]. There is also no non obstante clause, hence this does not override any other provision under any other law. Hence, it is merely clever drafting, for it reverts to the same process for interception as it applies to any other person [Section 20(2)(a)].
Third, India suffers from the highest number of internet shutdowns in the world. These injuries have been felt acutely across our country by people resident in Manipur, Rajasthan, Odisha, West Bengal, Jammu & Kashmir etc. Here, the Telecommunications Bill, 2023, restates the power to impose internet blackouts without any statutory safeguards, despite court cases and recommendations by the Standing Committee for IT [Section 20(2)(b)]. These could have been in the form of mere transparency, such as the duty of the state governments to send copies of orders to the Department of Telecommunications and then for the DOT to maintain a central directory of orders, however, is not part of the legislative text. This will also not be done under the rules, as the previous Telecom Suspension Rules will continue [Section 61].
Fourth, the Telecommunications Bill, 2023 continues the “kartavaya kaal” style of imposing penalties on ordinary Indians, as has also found expression under the Data Protection Act, 2023. It prohibits “false particulars, suppress[ing] any material information… while establishing their identity for availing telecommunications services”. This means KYC may be required even for OTT applications like WhatsApp. In addition to this, there is a vague penalty for when people “fail to share information as required under this act” [Section 29]. The fine for this is Rs 25,000, after which a daily fine of Rs 50,000 applies till you are compliant. Further, there is a marked preference for biometric identification [Sec. 3(7)]. This may mean another attempt by the government to force people to use Aadhaar as the single point of sign-up (mandatory) despite the Supreme Court in Puttaswamy vs Union of India clearly stating that this was impermissible.
Finally, it merits use to examine the larger environment in which this Telecommunications Bill, 2023, is being passed. First, democracy is today suspended in India with a large number of Opposition MPs suspended from parliament. Meanwhile, other laws that increase state power, decrease accountability and transparency and threaten ordinary citizens are being passed. The fist of the state is becoming tighter on our digital lives with the Broadcasting Services Bill, Data Protection Act and Post Offices Bill, all of 2023, and the Criminal Procedure Identification Act, 2022, and the IT Rules, 2021.
In all of these proposals and laws, the same model of vague drafting, centralisation of power through delegated rulemaking is proposed. Second, the government is failing to answer the clear challenges of rising inequality that manifest in digital India. For instance, it has failed to address or even acknowledge the sluggish pace of growth in the number of new mobile and data users in India. From double-digit growth rates through 2016 to 2020, it slumped to about 4% in 2021 and 2022, according to Telecom Regulatory Authority of India data. In the first quarter of 2023, it grew just 1.7% over the last quarter of 2022. Have we heard a word from the Ministry of Telecom on what is proposed to overcome this? There won’t be a word on it for there is nobody left or permitted in Parliament to raise these questions as the Telecommunications Bill, 2023 is passed through a voice vote.
Shame, shame, shame.
Apar Gupta is executive director of the Internet Freedom Foundation.
This article is excerpted from his X post on December 20, before the Telecom Bill was passed in the Lok Sabha by voice vote, with a large number of opposition MPs suspended.
