Leaving the opportunity to democratize telecom services

Draft Indian Telecom Bill, 2022 (Telecom Bill) – Published for public consultation on September 21, 2022 – aims at creating a legal framework in line with the realities of the 21st century to ensure India’s socio-economic development. This Telecom Bill follows the issuance of consultation paper, “Need for a new legal framework governing telecommunications in India”, which was published on July 23, 2022. However, it fails to exclude the colonial moorings that have shaped the law. Telecom in India from the last century.

a repackaging

Instead, it represents several wasted opportunities for significant legislative reform. The Telecom Bill misses out on the opportunity to democratize telecom services. Now, it has prioritized a move towards centralization of power through its new licensing regime. Here, the Telecom Bill also fails to evoke the lessons learned in the courts and other institutions of authority, and instead reintroduces the provisions of pre-independence laws to be passed as legislative progress. This is in return for enacting comprehensive legislative reforms that will strengthen user rights, a cornerstone of the Indian telecom sector.

The Telecom Bill will usher in a wave of stringent regulations and centralized power by introducing licenses for telecom services. The definition of such services under section 2(21) of the Telecom Bill has been substantially expanded to include online communication service providers such as WhatsApp, Apple Watch, Jitsi, etc. Such a move reflects historical baggage and flows from a long-standing debate. and sought to bring online communication services by large telecommunications companies (‘telicos’) under regulation to a ‘level-playing field’.

Threats to innovation, privacy protections

The argument that over-the-top (OTT) services are an “alternative” to the services provided by telcos, often referred to as the “same service, same rules” argument, is flawed as both have inherent advantages. There are different tasks. For example, while telecom operators act as gatekeepers to the underlying broadband infrastructure, OTT services can only be accessed through telecom-controlled infrastructure. The introduction of OTT communication services into the realm of telecommunications services is an example of a reductionist approach, aggregating the diverse services provided by OTT service providers such as social networking and video calling, thereby ending its prosperity. Such a move could create uncertainty in treatment, build ad-hocism, and inflict excessive compliance and legal costs on service providers, which could have a detrimental effect on innovation.

On September 14, 2020, Telecom Regulatory Authority of India (TRAI) issued recommendations on OTT regulation, supporting the demands raised by broader user choice and mainly digital rights organizations against imposing regulatory burden on internet communication services. Used to do However, the Department of Telecommunications (DoT) did not recognize these positive recommendations and further dilute the responsibility of TRAI to provide recommendations to the Central Government before issuance of licenses under Clause 46. In addition, the Central Government may exercise its special privilege to issue The license requires such online service providers to store data locally in India. Such data localization requirement gives excessive discretion to the government, and adversely affects the privacy of individuals.

Further, the expansion of the definition of telecommunication services to include OTT communication services, coupled with the interception requirements under section 24(2)(a), is the death knell for end-to-end encryption (E2EE) in India. may indicate. While section 5(2) of the Indian Telegraph Act, 1885, previously authorized the interception of messages transmitted via the telegraph, it sought to expand the provision to include OTT communication services such as WhatsApp and Signal, regardless of success by the executive. efforts have not been stopped without

In fact, a trial is going on before the Supreme Court of India challenging the traceability requirement of the Information Technology Rules, 2021. However, the Telecom Bill formalizes these efforts of the executive to circumvent the privacy-protecting practice of E2EE and permits the authorized officer to intercept or reveal any message or class of messages on OTT communications such as WhatsApp and Signal. service providers are required. These efforts are contrary to the recommendations and learnings developed in the last decade by the Supreme Court in the Right to Privacy judgment (2017) and the Justice BN Srikrishna Committee report on data protection (2018). Both of these indicated an urgent need to reform the existing surveillance infrastructure in the country due to the lack of independent oversight and its tendency to abuse.

suspension of net services

Reiterating this failure to learn from the knowledge accumulated after independence, Clause 24(2)(b) of the Telecom Bill, for the first time, provides a specific power for suspension of Internet services (Internet Shutdown). In addition to the impact of internet shutdowns on citizens’ fundamental right to freedom of expression, the high economic costs of such shutdowns have also been raised as frequent criticism. Here, the Telecom Bill, which recognizes socio-economic development as one of its stated objectives, fails to take adequate steps to fulfill its promise. This section does not address any issues existing with the existing framework of Internet shutdowns in India, specifically the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. Lessons and recommendations from the Supreme Court’s decision in 2020 Anuradha Bhasin vs Union of India And the 2021 report of the Standing Committee on Information Technology has no place in the Telecom Bill.

editorial | Over the top: on privacy and regulation of digital apps

The opportunity for significant legislative reform has been lost not only for surveillance and internet shutdowns, but also for net neutrality. India has in the past adopted an indigenous and progressive approach towards net neutrality. However, today we are missing an opportunity to set global standards by not including the principles of net neutrality in the Telecom Bill. DoT is inviting comments from the public till October 20, 2022. It is a bill that affects everyday Internet users, their choices and safety. Thus, it should be added comprehensively.

Anushka Jain is Associate Policy Counsel at Internet Freedom Foundation, New Delhi. Tejasi Panjiar is Associate Policy Counsel at Internet Freedom Foundation, New Delhi