Telecom Bill increases government control of the internet, warn experts

The Telecommunication Bill, 2023 was passed by the Parliament on Thursday, within four days of being introduced in the Lok Sabha on Monday. The bill, governing telecommunication services and telecommunication networks in India, replaces the Indian Telegraph Act, 1885 and the Indian Wireless Telegraphy Act, 1933.

The upcoming law has generated debate and concern, particularly regarding the Union government’s expanded powers and potential impact on internet freedom.

Digital and media rights experts said that the bill continues colonial-era surveillance and control of telecom services without any safeguards. On the other hand, representatives of the telecom industry expressed satisfaction with the legislation.

Sweeping government control

Digital rights experts told Scroll that the bill has ambiguous definitions about what constitute telecom services. As a consequence, it could potentially be extended to cover online communication services such as email and messaging platforms that are traditionally not considered telecom services.

“The definitions of ‘message’, ‘telecommunication’ and ‘telecommunication service’ mean that the bill covers email, cloud services, streaming and online software services,” said Nikhil Pahwa, founder of Medianama, a digital media outlet that covers technology policy in India.

Said Prateek Waghre, Executive Director at Internet Freedom Foundation, a digital rights organisation, “Depending on how you read the definitions, there is scope for interpreting it to include broader set of internet services.”

According to Raman Jit Singh Chima, Asia Policy Director and Senior International Counsel at Access Now, a digital civil rights-centred non-profit organisation, the “door is not closed on a telecom style-regulation of internet services”. “The bill vests significant power into the government in terms of what a telecom service is,” he said.

Even the debate on whether online services are covered within telecom services is “toxic”, Chima said. “Not only does it presuppose a lot of executive control over what are protected rights around free speech and online activity, but it presumes that telecom style-regulation applies well to internet issues,” he said.

Pawha said that as a result of the sweeping definition, the government could take over any online service on vague grounds such as “national security” and “friendly relations with foreign states” as well as during a war.

“The definition of telecom services should definitely be narrow and exclude over the top communication services,” said Nikhil Narendran, a technology and media lawyer and partner at the law firm Trilegal. Otherwise, the bill could lead to creeping government oversight over all of the Indian internet, he said.

However, in his first public statement on the matter published on Saturday morning, Union Minister of Communications said that the bill does not cover over the top players or applications.

Privacy concerns

Experts said that requiring biometric verification of users of services and impact on services offering end-to-end encryption would jeopardise the right to privacy of users.

“If just telecom services are included in the bill, even then to get a phone connection, you would need to get biometric verification,” pointed out Waghre. “If the broader definition is taken, then the government would have the ability to mandate biometric verification for using the internet.”

Said Namrata Maheshwari, Asia Pacific Policy Counsel at Access Now, “This would create a target for surveillance, whether covert or overt, by authorities or malicious actors, because they are making the need for identity so pervasive. It would also deepen the damage caused by already rising cyberattacks and data breaches.”

She pointed out that the Supreme Court has held that internet connectivity is part of fundamental rights under the Indian Constitution. “Today, one can maintain a level or privacy on digital communication,” she said. “However, making an essential service like access to telecom services contingent on biometric verification, and to have that entire framework developed, deployed and controlled by the government without any oversight, is problematic.”

Waghre also noted that the government has given itself the power to set encryption standards. “If it means that they can set standards for end-to-end encryption, not complying with those standards could lead to losing license for an online service provider,” he said.

In end-to-end encrypted communication services, no party other than the sender or caller and the intended recipients can access the content of the communication – not even the service provider itself. This ensures privacy and security of information, since the service providers themselves have no technical capability to intercept the communication.

The bill could lead to encryption, including end-to-end encryption, being standardised and weakened in a way that reduces access to safe spaces on the internet, said Maheshwari.

Increased ability for surveillance

Experts also pointed to provisions in the bill that enable the executive to carry out surveillance without any meaningful safeguards, in line with the Telegraph Act.

In the interest of “public safety” and the “preventing of incitement to the commission of an offence”, the government could seek for any messages from a person to be intercepted, disclosed or prevented, said Pahwa. This may apply not just to telecom services like phone calls, but also all online services, including email and messages through online apps.

Maheshwari warned that the bill makes interception of private messages “limitless and unchecked”. “Even when it comes to appeals, the appellate body comprises government representatives and lacks independence,” she said.

Pahwa asked: “How is the thinking of independent India different from colonial India when it comes to surveillance?”

No safeguards on government power

Experts flagged that the bill lays down no checks on the powers of the government, including on matters such as internet shutdowns.

Waghre pointed out that the bill leaves 46 different matters up to rules to be notified later by the government. “There are no anchoring criteria or safeguards in the bill itself regarding what these rules can or cannot do,” he said.

There is no alignment with basic principles of necessity and proportionality, said Maheshwari.

Waghre said that a lot of provisions in the bill, such as that relating to taking control of services, had been copied and pasted from the Telegraph Act with minor changes.

“The surveillance architecture needed to be tweaked to introduced safeguards,” he said. There was significant opportunity for reform, which has not happened, he said.

“The bill is replacing colonial-era laws,” said Chima. “However, it is still carrying forward a colonial era approach to telecom regulation and powers of the government without balancing the impact on people’s rights, amid heightened scope for surveillance and misuse in the digital age, which is alarming.”

Industry bodies welcome the bill

On the other hand, telecom industry representatives praised the Bill for its reforms.

“The bill prevents coercive actions like sealing/shutdowns without due permission from the Central Government,” said Lt Gen SP Kochhar, Director General of the Cellular Operators Association of India, a telecommunication industry trade association and advocacy group said. “Such positive measures will help connect Indians to a robust digital network across the length and breadth of the country.”

Characterising the provisions regulating the interception of messages or unauthorised access to them as “strict”, he said that these would help ensure national security.

He added: “The bill also lays down that internet shutdowns can be authorised only by the central government, which is objective and looks at ensuring continued, uninterrupted and seamless telecom connectivity to all.”

Kochhar said that the Cellular Operators Association welcomed the bill for “simplifying [the] overall regulatory landscape for telecom services” and its “focus on creating robust telecom networks”.

Similarly, the Broadband India Forum, an independent broadband-focused policy forum and think tank, in a public statement, praised the bill, stating that it will bring in “tremendous benefits for the customers and would help proliferate the internet penetration.” It added that the bill would “help boost investor confidence of both domestic and foreign investors and will help fetch billions of dollars of FDI in the space sector.”

However, lawyer Nikhil Narendran said that if over the top communication services are regulated, it also lead to higher compliance costs for know your customer requirements and interception, among other things, which could eventually lead to several free online services becoming paid services.

“The telecom sector growth has stagnated in terms of telecom users,” said Waghre. “Ideally, the bill should have stimulated growth rather than enforcing more control and more licensing.”