Recently, in the month of September, the Ministry of Communication proposed a sunset period for obsolete telecommunication rules by releasing the new draft Telecommunication Bill, 2022. The bill seeks to enable a future-ready framework for the telecommunication sector and stay attuned to the realities of the 21st century. It also aims to upgrade the current regulatory framework in light of the sector’s advancements and challenges by consolidating three obsolete acts, namely, the Indian Wireless Telegraphy Act,1833; the Indian Telegraph Act, 1885; and the Telegraph Wires (Unlawful) possession Act, 1950.

However, numerous concerns have been raised concerning the implications of the draft bill. By providing the Central Government sole ability to grant or exempt licenses, the bill will severely impact the flagship initiative of Digital India. Additionally, intercepting messages as and when required would have a crippling impact on the right to privacy and freedom of expression. If the bill is not revised there stands a strong probability of the dilution of the Telecom Regulatory Authority of India’s (TRAI’s) power and suspension of the Internet could lead to the creation of a ‘surveillance state’. It further puts forth the way forward wherein ‘how’ the bill could be withheld from disaster in making.

Exclusive Licensing and Internet Suspension: An attack on Digital India?

The Department of Telecommunication (DoT) has emphatically made an attempt to extend licensing to all the Over-the-Top (OTT) platforms which makes it the central bone of contention. The draft bill proposes to introduce a more onerous ‘license’ for all the services and telecommunication networks. This means that the licensing regime will not only apply to mobile and internet services but also to software platforms that operate using the internet, ranging from calling and messaging applications. Likewise, Section 3 of the draft bill provides exclusive privileges in the hands of the Central government concerning licensing of OTT platforms. The telecom sector contributes 8% of the total GDP of India and subjecting them to licensing may have serious repercussions. Supposedly, a potential service provider who wishes to enter the digital market will now have to avail license after investing a huge amount of money. This provision might shoot up the cost for new innovators, which in turn would not only act as a backlash to the flagship initiative of “Digital India” but also lead to the centralisation of power in the hands of big entities only.

Furthermore, the provision of suspending internet services under Section 24(2)(a) at the discretion of the government paves the way toward a surveillance state. It lays down the condition for public emergency and suspension of internet services whenever there is a threat to the “integrity, sovereignty and security of India”. However, all these words have been subject to interpretation time and again, giving discretionary powers to the state. Back then in 2019, internet services were suspended in Jammu and Kashmir to avoid the commotion being caused due to the nullification of Article 370 and the bifurcation of territories. The digital blackout was restored after 145 days causing heavy loss to students and the business community. Such provision also goes against the precedent set in the case of “Anuradha Bhasin v. Union of India and Ors.”, where the suspension of internet services was held to ‘must not be done disproportionately’. On one hand, Digital India stands as an initiative by the government of India to digitally empower the citizens by increasing internet connectivity while on the other hand, the iniquitous internet suspension lambasts the same.

End of Encryption?

In 2016, WhatsApp announced that its messages are fully encrypted, suggesting that only the user and the person with whom they are communicating can read those messages. However, Section 2(21) of the draft bill, attempts to end encryption by expanding the definition of telecommunication services to include all the over-the-top (OTT) platforms. As a result, service providers like WhatsApp and Telegram may now be asked to intercept any message to an officer specified in the surveillance order. The WhatsApp controversy of 2021 has already highlighted that mandating or asking social media platforms to trace the origin of chats undermines the right to privacy of people. Additionally, the recent Twitter controversy, where hundreds of accounts featuring criticism of the state were taken down corroborates the fact that unwarranted digital empowerment in the hand of the government can backfire.

Furthermore, the draft bill proposes the OTT platforms to obtain Know Your Customer (KYC) details of the customers which, would allow them to continue with the service and ensure their cyber-security. There arises a strong probability that the KYC details of the customer may be shared with any third party. Further, the bill proposes that the license- holding entity must unequivocally identify the person to whom it is providing the service through a verifiable mode of identification. This identification can be done through the collection of data and verification. However, India does not have any uniform law on data protection mechanisms which makes this provision prone to cyber fraud by eliminating the individual’s right to stay anonymous.

Therefore, the end of encryption and obtaining the KYC details of the customer could be a direct attack on the security and privacy of users under article 21.

Dissolution of TRAI’s Power – A disaster in making?

The Telecom Regulatory Authority of India (TRAI) is a statutory body established under Section 3 of “The TRAI Act”, 1997 with the main task to regulate and promote the Telecommunication Sector. The draft bill, however, makes TRAI a defunct body by diluting its powers provided under Section 11 of the “TRAI Act”. It allows TRAI to provide services, tariffs, and the power to give recommendations to the government before providing licenses to the service providers. However, the draft bill proposes to remove the mandate on the government to furnish the information sought by TRAI for making recommendations. It states that the requirement to consult TRAI for advice on issues pertaining to the necessity and timing of the launch of new service providers is not mandatory. The Department of Telecommunication has been posed as the center stage in charge of overseeing and regulating the telecom domain. In addition to that, the Central Government has been given the exclusive authority under section 3(1)(2) of the draft bill to decide on Registration, licensing, and assignment without consulting TRAI. Contrarily, the word "Notwithstanding" at the beginning of Section 11 of the ‘TRAI Act’ gives TRAI the exclusive authority to make decisions about tariffs, prohibiting the DoT from interfering with those decisions. As of now, the management of spectrum lies in the hand of TRAI. However, under Schedule I of the draft bill, it has been proposed that the central government shall be handed the task of spectrum management. For this purpose, the government may notify a National Frequency Allocation Plan (NFAP) to assign the spectrum.

Thus, the bill makes an attempt to confine the powers of TRAI instead of expanding them. It reinforces the colonial’s command and control approach which could lead to a step closer towards disaster of TRAI’s power.

The Draft Telecommunication Bill – A Ploy towards a ‘Surveillance’ State?

The draft telecommunication bill tried to grant sweeping powers to the government by centralising the decision-making authority. A combined reading of Sections 3 and 4 of the draft bill enables outright powers to the central government to grant license, registration, and authorisation of telecommunication services. It further construes to impose public emergency under section 24 in the interest of ‘security’ of the nation which is a useless attempt to comprehend what is constitutionally undefined. As cited above, that how internet suspension in the past have continued for an unwarranted period of time at the whims and fancies of the government. It must be noted that the intercepting of messages in the name of ‘public interest’ is a legal manifestation of the intersection of violation of the fundamental right to privacy under Section 21. Social Media and OTT platforms act as an avenue for users to conduct various forms of protest and assuage their concerns by dissemination of information. Any restriction on it would be a direct attack on Indian Democracy and a step closer to the creation of a ‘surveillance state’.