Bhubaneswar: The Modi government’s 46-page Telecommunications Bill, 2023 which was tabled in the Lok Sabha earlier this week – and passed with a voice vote amid almost empty Opposition benches Wednesday – has invited sharp criticisms from the legal community, civil rights bodies, and activists, though the industry has welcomed the legislation, quite expectedly.
While the concerns stem from the ground that the Bill allows the government to temporarily take control of telecom services in the interest of ‘national security’ and drops OTT in the definition of telecom services, the non-auction route (through administrative assignment) for allocation of satellite spectrum is being dubbed by IAMAI as an initiative towards transparency. Nevertheless, an impugned provision of the Bill that allows the government to intercept or detain communications (press messages), by journalists meant for publication in India, for ‘public emergency’ has been viewed as an attempt to muzzle open speech and press freedom. The fears are not unfounded given the government action against platforms like X or BBC even before the introduction of the Bill.
Calling the definition of ‘telecom service’ in the Bill ‘ambiguous’, the internet freedom foundation (IFF) was quoted by The Quint as stating that it exacerbates privacy invading provisions such as the obligation of any authorised entity, as notified by the Union government, to identify the person to whom it provides telecom services, through use of any verifiable biometric-based identification ‘as may be prescribed.’ Tanu Banerjee, Partner at Khaitan & Co, told Orissa POST that while in the Telecom Bill 2022 internet- based communication services and OTTs were specifically included in the definition of ‘telecommunication services’, the 2023 Bill does not specifically include such online platforms. “Many definitions in the Bill appear to be wide. In the event of inclusion of online platforms, these will be regulated at par with telecom companies, requiring authorisation from the government for operating in India; and being subject to the government’s power to intercept, which in turn will dilute the benefits of encryption and raise concerns around user privacy,” she said. Noted lawyer and writer on democracy, Apar Gupta, termed the Bill as ‘another action to cement authoritarian control over the rights of ordinary citizens’. He said its impact will be felt directly as there is a clear power for the Union government to regulate and license services such as WhatsApp, Signal, and Gmail, and may enable the government to weaken privacy and increase snooping in the future. He was apprehensive about the likelihood of KYC requirements for OTT applications like WhatsApp. “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 KS Puttaswamy clearly stating this was impermissible,” he said in a post on X.
Journalist and digital rights activists Nikhil Pahwa said the Bill is a pro-telco and anti-internet legislation. He said a cursory glance at the Bill makes it clear that the definition of ‘message’ applies to email, cloud, SAAS, and streaming. While the messaging platform WhatsApp has challenged interception of online messaging and calling, the government has sought to bypass the bar under IT rules by cleverly defining messaging, telecommunications, and telecommunication services under the Bill. On the provision authorising the government to take over an online service for ‘national security, friendly relations with foreign States, or in the event of war’, Pahwa, in a post on X said, “Reminds me of China’s regressive intelligence law. Remember: national security is not defined in law, and even the SC doesn’t want to go there…”
