Published: 03rd November 2022
#WhatTheFAQ: What does the Draft Telecommunications Bill mean for internet freedom in India?
As per the government website, the public still has seven days to send its feedback on the Bill, which critics say gives widespread powers to the Central Government and undermines user privacy
The Draft Telecommunications Bill 2022 states, "Considering telecommunication is a key driver of economic and social development, and telecommunication infrastructure and telecommunication network are important parts of public infrastructure, and it is necessary to ensure availability of affordable, reliable, secure and universal telecommunication services." And yet its provisions have invited criticism from various organisations and individuals, not just in India, but from around the world, on its potential impact on internet freedom, telecom regulations and surveillance by the government. We take a look at the fine print.
What is the Draft Telecommunications Bill 2022?
The draft Bill was made public in September this year. It was drafted by the Department of Telecommunications, Government of India, based on a consultation paper titled, ‘Need for a new legal framework governing Telecommunication in India’, written in July. The Bill will replace three major regulations that govern telecommunication in India, namely, the Indian Telegraph Act, 1885, the Wireless Telegraphy Act, 1933 and the Telegraph Wires (Unlawful Possession) Act, 1950. As per the information released by the government, the draft Bill focuses on three major aspects of telecom regulations. These include a "future-ready" legal framework, streamlining telecommunications in India to meet international standards, and addressing concerns of public safety.
How does the Bill impact telecom companies and OTT platforms?
Telecom providers such as Airtel and Jio have long been asking for a "level-playing field" to compete with Over-The-Top OTT platforms, such as WhatsApp, that offer services over and above those offered by the telecom companies and are not required to meet the cost of maintaining the infrastructure required to provide those services, such as mobile data and WiFi. Essentially, the OTT platforms do not pay for licenses or the spectrum, the way telecom companies such as Airtel and Jio do. The Telecom Bill brings all OTT services under the Unified Access Service License by rephrasing the definition of terms such as ‘telecommunication’, ‘telecommunication services’ and ‘telecommunication network’.
What does it have in store for telecom companies?
The Bill makes it more convenient for telecom companies to address complaints of any violations made against them. Telecom companies can act independently by submitting voluntary undertakings that detail their course of action in the alleged breach. It is then up to the Central Government to accept these undertakings, and once they are accepted, the telecom companies will not be liable for any other proceedings against them in the matter.
What other powers does it give telecom companies?
Right of Way is another shot in the arm that the Bill provides telecom companies with. Essentially, it means telecom service providers can obtain Right of Way to establish telecom equipment on public or private land. In the case of public land, government officials are directed to grant clearance to such requests promptly, and in the case of private property, the Central Government is given the authority to step in and grant permission to establish telecom equipment on private land if it deems it to be in "public interest" even if the owners have denied Right of Way.
What are some concerns being raised with regard to privacy?
By bringing all OTT platforms under the same licenses as telecom providers, these platforms will be required to maintain the same nature of 'Know Your Customer' databases, which critics claim can be misused by the government. As per the Bill, if users wish to send a message, they will have to be identified, which again threatens privacy. The government, under this Bill obtains widespread surveillance powers over OTT platforms, including end-to-end encrypted ones such as Telegram.
How much power does the Bill give the Central Government?
The Central Government has control over waiving any fee for a licensed telecom provider. As per a report by The Leaflet, this could mean that taxpayers' money is used to waive debts owed to the Central Government by telecom companies, such as Vodafone-Idea, which is said to owe the Central Government about Rs 2 lakh crore. The bill also states that in case a telecom provider possessing an assigned spectrum goes bankrupt, the spectrum is reallocated under the control of the Central Government. Then, it also undermines the authority of powers of the Telecom Regulatory Authority of India (TRAI). TRAI's powers to send recommendations to the Central Government in matters of providing licenses to telecom providers have been stripped away.
What does the Bill say on internet shutdowns?
According to data released by the Software Freedom Law Centre, between 2012 to 2022 India had the highest number of internet shutdowns in the world at 683. Critics say that the bill might enhance the powers of the telecom providers, and by extension that of the Central Government to control people's access to the internet. The Bill states that internet services can be shut down in any part of the country by the Central or State Government or by the officer appointed for this purpose in case of "public emergency" or in the interest of "public safety". The government is also authorised to take control of telecommunications services or networks in the area. The Bill, significantly, prescribes no time limit for such a restriction. As per orders by the Supreme Court and a Parliamentary Committee on Information Technology, the government is required to publish such orders of internet shutdowns, prescribe a time limit, and constitute a review committee to scrutinise the shutdown. However, the Bill does not take into account any of these directions.
What stage is the Bill at right now?
Apart from a letter that has been signed by over 20 organisations for internet freedom and individuals demanding that the Bill be withdrawn, the TRAI has also raised concerns about the dilution of its powers. The Central Government said that it was addressing the concerns raised by TRAI over the removal of checks and balances in place while awarding licenses to telecom companies. TRAI has also contested the proposal to regulate OTT platforms, which is a stance it has maintained since 2020. As per the government website, the public still has seven days to send its feedback on the Bill at civis.vote/consultations/384/read. So far, the Bill has received 100 responses and only five public responses.