Telecommunications Bill Lays the Ground for Totalitarian Control of the Internet
Srinivas Kodali
The Telecommunications Bill 2023 that has been introduced in parliament this session is an extremely draconian law. It forces government control on every message that is being transmitted, emitted or received in any form including wired, electronic, optical etc. The definition of a message in the Bill is very broad with inclusion of sign, signal, writing, text, image, sound, video, data stream, intelligence or information sent through telecommunication. This is so vast that every internet/digital app within the boundaries of India has to comply under the upcoming law.
The Bill is creating a new authorisation regime, where any telecommunication service would have to apply for authorisation to operate in India. With the wide definition of telecommunication and messages, this will ideally be applicable to every social media application out there – WhatsApp, Facebook, X, Instagram, etc. This Bill essentially brings a licence regime to the internet. Services not complying with the law could be likely to be blocked or banned in India, like TikTok was.
The Internet and Mobile Association of India, a leading industry body of internet companies and startups in the country, has welcomed the Bill for removing over-the-top platforms (OTTs) from being regulated. But this is probably a false sense of celebration, as this Bill will have a profound impact on every internet company with the authorisation regime and the compliance requirements under it.
The Telecommunications Bill 2023 will replace colonial laws of the Indian Telegraph Act 1885 and Indian Wireless Telegraphy Act 1933. These colonial laws provided extreme forms of control over communications in colonial India to the British. While the Bill is being praised by the telecom industry for replacing archaic colonial laws, the Telecommunication Bill 2023 is expected to provide a larger control than these colonial laws to the Government of India and its institutions.
The provisions of the Bill allow the Union government or a state government to take over any telecommunication service or network in the event of public emergency or safety. It allows officials of both Union and state governments to intercept or detain or not to transmit messages from a single person or class of persons. This single measure gives officials immense powers to control and spy on every message over the entire telecom network for public safety.
The Bill further mandates biometric verification of every social media user by the telecommunication services. This forces identification for all forms of communications and pushes India’s KYC regime across the internet. To illustrate the power of these provisions, think of the Delhi Police trying to access all the details of every individual tweeting during the farmers’ protest, to stop every message with a certain hashtag or keyword or to block people from accessing their own accounts. Every aspect of this Bill allows the police or intelligence agencies to continuously monitor the opposition, whether it is farmers’ leaders or students who might be protesting.
While the Bill provides exemptions for accredited media professionals to not be intercepted or detained, it would require every journalist to identify themselves as such with the telecom service companies. Journalists would have to register with every telecom service provider including social media and other communication services. But this may not necessarily provide them with the media freedoms and privacy that are required in a democracy.
The push for KYC for internet apps and services began with the CERT-In rules mandating KYC and logging for VPN companies in India. With the Telecom Bill, this architecture of an identity-linked internet telecommunication service will kill anonymity online. This in itself is not against the fundamental right to privacy, as the Puttaswamy Vs Union of India fundamental right to privacy judgment recognises exemptions for national security and doesn’t grant Indians the right of anonymity. However, there is no conducive environment to even challenge these upcoming surveillance laws in courts, with a majoritarian executive that is able to force these laws without any obstacles.
The Bill includes all these provisions for detention of messages as an alternative to avoid internet shutdowns and look for alternate mechanisms on the recommendation of the Parliamentary Committee on Information Technology. The issue of access to internet is the core of telecommunications infrastructure. To address issues of access to remote areas, satellite based internet was been explored as an alternative. The spectrum allocation for this is going to be controversial, with the need for auctions vs administrative allocation for limited scenarios. The Supreme Court judgement on spectrum allocation would be revisited. It is important to note, spectrum allocation using administrative approvals alone could lead to illegal allocations and scams without due process.
While these are provisions merely provided for public safety, the national security provisions of the Bill allow the Union government to suspend, remove or prohibit the use of specified telecommunication equipment and telecommunication services from countries or persons as may be notified. So like TikTok being banned, similar communication and media applications can be blocked from countries or individuals at large.
The national security provisions also allow the Union government to dictate telecom standards for equipment and services including, encryption, cybersecurity and data processing in communication. The security standards for telecommunications equipment are indeed important and can be detrimental to national security if the Government of India has no control over them. This needs to be seen with the geopolitical controversies across the world of not allowing Chinese companies like Huawei and ZTE to build 5G infrastructure. India too doesn’t want any Chinese equipment as part of its telecommunications infrastructure.
The problem of encryption standards for telecommunication services being set by the government could be dangerous, given the Government of India’s interest to break up encryption of WhatsApp and Signal messengers. Most internet communication is encrypted and is increasingly being pushed towards encryption, to evade nation state surveillance programmes. Meta has recently moved all of its messaging services from Facebook Messenger and Instagram to end-to-end encryption, using the Signal protocol.
India’s strategy with censorship and surveillance is to push for identification and control of communication networks. As the saying goes, there is freedom of speech in India, but there is no guarantee of freedom after speech. India’s censorship strategy is to shut people down by punishing a few outspoken and hoping the rest fall in.
The Telecommunications Bill demands a Chinese-style banning of messages based on keywords or other characteristics. Its usage, though, will be limited to scenarios like the case of a public emergency such as protests and riots, instead of a continuous censorship that exists in China. While this difference might exist, it still lays the ground for a larger totalitarian control if the government wants to eventually assert control.
(Srinivas Kodali is a researcher on digitisation and a hacktivist. Courtesy: The Wire.)
With Cleverly Drafted Telecom Bill, Government Tightens Grip on Digital India
Apar Gupta
The Telecommunications Bill, 2023, passed by both houses of parliament, is another action to cement authoritarian control over the rights of ordinary citizens. Its impact will be felt directly in four clear ways.
First, there is a clear power for the Union government to regulate and license OTT services such as WhatsApp, Signal, Gmail etc. Here, the unfounded hope and the underserved servility in statements that OTT regulation is excluded from the ambit of regulation of the Telecommunications Bill, 2023, is not borne out from its text. The Union government may prescribe licence conditions that may vary as per “telecommunication service” [Section 3(1)(a) and Section 3(1)(b)] and require prior registration that may be used for the government to weaken privacy and increase snooping in future. While the phrases “OTT”, “Messaging Services” or even “Email” are not expressly mentioned in the Telecommunications Bill as in the draft version, they at the same time have not been expressly excluded from the definition of “telecommunication service” which means, “any service for telecommunication” [Section 2(t)]. Further, the phrase, “telecommunication” is defined to include, “transmission… or reception of any messages…” Hence, internet-based messaging and email services are included.
Second, the Telecommunications Bill, 2023 extends colonial powers of interception of your communications without any safeguards. This is first done through powers to notify standards and conformity assessments that will include encryption [Section 19(f)]. This may even be under grounds of national security [Section 21]. Encryption is a technology that is used in internet-based messaging to ensure that only the sender and receiver read the message in plain text. Any person snooping in on the message during transmission cannot read it. However, standard setting powers may be used to create backdoors, introduce message traceability (identifying the author of a message), or to create block lists of words (as is done in China on WeChat). This becomes clearer when you look at the powers of interception that require intercepted messages to be disclosed in an “intelligible format” [Section 20(2)]. There are no procedures and safeguards in the text of the law and the existing procedure under Rule 419-A of the Telegraph Act, that has been abused, will continue [Section 61]. For instance, the Government of India even now refuses to provide aggregate data on the number of interception orders that it issues. It is a completely unaccountable and secretive system of surveillance without any oversight by courts or Parliament, that is being made more severe without any reform.
For those stating that the present Telecommunications Bill, 2023 contains exemptions for “press messages”, I encourage you to read more carefully. While it does create a sub-classification for “correspondents accredited with the Central or State Government”, it does not offer any heightened protection (such as an additional procedural safeguard or reason) for the same conditions [Section 20(3)]. There is also no non obstante clause, hence this does not override any other provision under any other law. Hence, it is merely clever drafting, for it reverts to the same process for interception as it applies to any other person [Section 20(2)(a)].
Third, India suffers from the highest number of internet shutdowns in the world. These injuries have been felt acutely across our country by people resident in Manipur, Rajasthan, Odisha, West Bengal, Jammu & Kashmir etc. Here, the Telecommunications Bill, 2023, restates the power to impose internet blackouts without any statutory safeguards, despite court cases and recommendations by the Standing Committee for IT [Section 20(2)(b)]. These could have been in the form of mere transparency, such as the duty of the state governments to send copies of orders to the Department of Telecommunications and then for the DOT to maintain a central directory of orders, however, is not part of the legislative text. This will also not be done under the rules, as the previous Telecom Suspension Rules will continue [Section 61].
Fourth, the Telecommunications Bill, 2023 continues the “kartavaya kaal” style of imposing penalties on ordinary Indians, as has also found expression under the Data Protection Act, 2023. It prohibits “false particulars, suppress[ing] any material information… while establishing their identity for availing telecommunications services”. This means KYC may be required even for OTT applications like WhatsApp. In addition to this, there is a vague penalty for when people “fail to share information as required under this act” [Section 29]. The fine for this is Rs 25,000, after which a daily fine of Rs 50,000 applies till you are compliant. Further, there is a marked preference for biometric identification [Sec. 3(7)]. 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 Puttaswamy vs Union of India clearly stating that this was impermissible.
Finally, it merits use to examine the larger environment in which this Telecommunications Bill, 2023, is being passed. First, democracy is today suspended in India with a large number of Opposition MPs suspended from parliament. Meanwhile, other laws that increase state power, decrease accountability and transparency and threaten ordinary citizens are being passed. The fist of the state is becoming tighter on our digital lives with the Broadcasting Services Bill, Data Protection Act and Post Offices Bill, all of 2023, and the Criminal Procedure Identification Act, 2022, and the IT Rules, 2021.
In all of these proposals and laws, the same model of vague drafting, centralisation of power through delegated rulemaking is proposed. Second, the government is failing to answer the clear challenges of rising inequality that manifest in digital India. For instance, it has failed to address or even acknowledge the sluggish pace of growth in the number of new mobile and data users in India. From double-digit growth rates through 2016 to 2020, it slumped to about 4% in 2021 and 2022, according to Telecom Regulatory Authority of India data. In the first quarter of 2023, it grew just 1.7% over the last quarter of 2022. Have we heard a word from the Ministry of Telecom on what is proposed to overcome this? There won’t be a word on it for there is nobody left or permitted in Parliament to raise these questions as the Telecommunications Bill, 2023 is passed through a voice vote.
Shame, shame, shame.
(Apar Gupta is executive director of the Internet Freedom Foundation. This article is excerpted from his X post on December 20, before the Telecom Bill was passed in the Lok Sabha by voice vote, with a large number of opposition MPs suspended. Courtesy: The Wire.)
Three New Laws Give the Govt Extraordinary Powers Over Journalism, Entertainment and Internet
Akshit Chawla
Three new legislations give the Union government power to censor news content, imperil encrypted communication, make it easier to shut down the internet, and intercept communications with minimal accountability.
These views were put forth by leading experts at a meeting organised on December 20 by Digipub, which represents over 60 digital news media, independent journalists and commentators.
These legislations include the Telecommunications Bill of 2023, the draft Broadcasting Services (Regulation) Bill of 2023, and the Digital Personal Data Protection Act of 2023.
The Lok Sabha passed the Telecom Bill on December 20 and the Rajya Sabha on December 21, and it will become an Act after the President’s assent.
Anything can be censored under the new Broadcasting Bill
The legislation aimed at regulating online content, including news, were “extremely broad” and “vague”, said Ritu Kapur, CEO and co-founder of The Quint. There is currently a “complete lack of clarity” on what can lead to a punishment, interception, investigation, inquiry, or censorship, said Kapur.
She said the provision for content evaluation committees (CECs) in the draft broadcasting bill, asking broadcasters to broadcast only those programmes self-certified through these CECs, would be difficult for news media to follow.
“There is a reason news organisations have editors,” said Kapoor. “Why do we need this content evaluation committee?”
Digital news content creator Meghnad S spoke about how the difference between journalists and content creators has been blurred in recent legislation.
Meghnad said anyone making social commentary online – including comedians, Instagram meme pages, even those running WhatsApp communities – could face the same restrictions proposed for news media in the Broadcasting Bill.
He was referring to the broad definition of “news and current affairs programmes” prescribed in the draft of the Bill, which requires such programmes to adhere to advertising and programme codes prescribed by the government.
Meghnad said these codes restricted programming for a variety of supposed transgressions, such as “snobbish behaviour (…), decency, public morality”.
It is unclear if the government will continue with the existing codes.
Meghnad expressed concern over the requirement of verifiable biometric-based identification for users of telecom services in the telecom bill. For journalists, he said, this could mean that their sources can no longer be anonymous when they share news.
Meena Kotwal, the founder of the news website The Mooknayak, said these laws could be used for “selective targeting” of people speaking on issues that the government did not want to discuss.
She said, “Since things are in the hands of the government, it can decide what is right or wrong. There are a lot of ministers in the government who put out wrong information, but no one will target them. And even if our information is correct, it is very easy to target us”.
Aslah Kayyalakkath, the founding editor of Maktoob, shared his experience of how he landed in trouble with the Kerala police because of a 30 October story by a freelance journalist alleging anti-Muslim bias by the Kerala police. The police filed a first information report (FIR) against the freelancer, and his phone was seized. Kayyalakkath was made a potential accused in the FIR and interrogated for several hours.
Several such instances of harassment and arrests of journalists publishing stories critical of the government and its institutions have been recorded in the past few years. This not only discourages journalists but also instils a feeling of fear that leads to self-censorship.
Surveillance and privacy concerns in Telecom Bill
Advocate Apar Gupta said there were major concerns related to surveillance and interception, internet shutdowns, encrypted services, and duties of users in the Telecom Bill, 2023 (which the Lok Sabha passed with 95 of its MPs suspended), in a political economy “where there is a growth” of chosen companies and increased government control.
Referring to internet shutdowns, Gupta said, “Long periods of Internet shutdowns have caused grave amounts of economic and social injury to people in Jammu and Kashmir and Manipur, almost reducing them to a barbaric sort of existence during Covid”.
“The department of telecommunications still refuses to make a centralised repository of internet shutdowns, thereby reducing transparency,” said Gupta. “We are completely ignoring the central core of telecommunication rules that are required.”
Gupta said the interception provisions in the new bill were worse than those in a previous 2022 avatar, which was released for public consultation in September of that year. The department of telecommunications did not release the comments that were made.
The new Telecom Bill states that the Union government can ask for messages to be disclosed in an “intelligible format”.
“What that means is that if there is an interception order, and it’s a WhatsApp message given to WhatsApp, [then] WhatsApp needs to decrypt it and give it to a law enforcement officer,” said Gupta. “And how will it do it if it’s implementing end-to-end encryption?”
WhatsApp currently claims to provide end-to-end encrypted messaging services, which means that no one except those communicating with each other can read the messages being exchanged, not even WhatsApp. Asking WhatsApp to decrypt its messages could affect the privacy rights of Indians.
“The hope is always obviously if you’re coming out with a new law, you would want policy to improve,” said Gupta. “You wouldn’t want it to just replicate the existing provisions.”
Advocate Vrinda Bhandari spoke about how search-and-seizure powers granted under the Telecom Bill were of concern. The bill allows any officer authorised by the Union government to search any place where “unauthorised” telecom equipment is kept and seize it, or, for certain offences, such as unlawful interception and “causing damage to telecommunication network”.
Bhandari said the government’s powers under the bill were “very broadly defined” and provided no safeguards against interception. The new Bill would allow any social media messages on Manipur violence to be blocked for “inflaming tensions,” she added.
The Bill allows the central government to intercept messages communicated via “any telecommunication equipment” for reasons like “public emergency or in the interest of public safety”.
Another controversial aspect of the Bill is the definition of “telecommunication services”. Bhandari argued that the current definition is still very broad and has the scope to include “any content” under its ambit. This could cover services like WhatsApp, PayTm and Google Pay, she added.
Including internet-based services in the definition of “telecommunication services” would make them vulnerable to the government’s power to restrict and suspend their services.
Advocate Shreya Singhal said the Telecom Bill allowed all telecom services to be suspended for any “public emergency”. The government would have the power to ban not only the internet but also mobile services.
Censorship powers of the Broadcasting Bill
Journalist Anna M.M. Vetticad referred to growing self-censorship in the Hindi entertainment industry, describing it as “mind-boggling”.
“If an actor is outspoken, they will not cast that person” because there’s potential for controversy, said Vetticad. Self-censorship was evident even with script-writers and financiers, she added.
Vetticad discussed the film “Bheed,” which draws connections between the Covid crisis and India’s 1947 partition. When the film’s director, Anubhav Sinha, ran into trouble with the censor board, the producer distanced himself from the project and had his own name removed from the credits, Vetticad said.
“Multiple filmmakers have told me that the scripts of their shows and their films are being looked at for [to check if] there’s anything that would offend the government [or if there] is there anything that would offend Hindutva,” said Vetticad.
She also raised concerns with the provisions for content evaluation committees (CECs) in the broadcasting bill. The bill requires broadcasters to self-certify content before publication. The CEC, she said, would be another layer above existing censorship.
The broadcasting bill seeks to regulate broadcasting services over television, internet, and radio, allowing the government to regulate or censor content. The bill empowers the union government to delete or modify programmes.
Lawyer Alok Prasanna, co-founder and lead of Vidhi Centre for Legal Policy, Karnataka, described the broadcasting bill as a completely “confused approach” to regulating OTTs.
Abhinandan Sekhri, co-founder and CEO of Newslaundry, said it was important to remember that government regulations also applied to the media. “I myself have faced in court in five different cases, three against income tax authorities, one against The Times of India, one against India Today,” he said.
Vibodh Parthasarathi, associate professor Jamia Millia Islamia, said that the broadcast regulations have been “unclear” in finding the “object of regulation”. For instance, he said, “I see a lack of state capacity in stipulating the methodology for audience measurement”, a task that falls under the ambit of the central government under the broadcasting bill.
(Akshit Chawla is an independent journalist based in New Delhi. Courtesy: Countercurrents.org.)
Telecommunications Bill, 2023: Of the State, By the State, and For the State
Jawhar Sircar
The unseemly haste and rough manner in which Prime Minister Modi and his Communications Ministry rushed through the Telecommunications Bill in the Lok Sabha and the Rajya Sabha not only reveals their muscular, majoritarian psyche but also the regime’s apathy towards (or fear of) debate.
The government first ensured that almost the entire Opposition (attending parliament) was suspended and then pushed this Bill with lightning speed and no criticism or debate. So impatient was the government to ensure that it got through whatever it wanted that it enfeebled the Rajya Sabha’s powers to examine it.
It declared, quite unreasonably, that this is a Money Bill which would be decided, de facto and de jure, by the lower house.
What Does the New Bill Do?
The draft Bill was hardly ever put out for serious public consultation. There are phrases inserted in clauses like number 4, under which this government may strike financial deals with multinationals and big corporates, granting them precious national resources like spectrum directly.
By not going in for free and fair price realisation auctions, this clause militates against the letter and spirit of the Supreme Court’s orders.
One had expected sensitive sections like clauses 20 to 23 in the new law (that refer to invasion of privacy) to be discussed more freely in the public domain and then be taken in both Houses of Parliament.
Such optimism was misplaced as balance, vision, and broadminded worldviews are usually conferred by a certain degree of education and exposure, which are not evident in the ruling duo.
They neither understand these requirements nor care for democratic procedures.
Past, Present and Future of the New Bill
The new Bill replaces the Indian Telegraph Act of 1885, the Indian Wireless Telegraphy Act of 1933, and The Telegraph Wires (Unlawful Possession) Act of 1950. The 1885 Act has undergone the test of time and its terms were constantly re-adapted to meet current exigences – with band-aid and chewing gum. But that is no reason to kill a 138-year-old trusted horse with one jhatka (blow).
In any case, the powers of interception and internet shutdown were there in the old Act also, but with typical ‘fair play’ boundaries.
Ignoring these, this muscular regime has the reputation of purchasing atrociously-priced Pegasus telecom-piercing software to hack into the communications of journalists and democratic dissenters. It got away, thanks to a broken legal system.
This Bill says that telecom also covers a wide range of services that use the internet such as messaging, calling, and video conferencing. These would obviously involve the transmission of text, audio, or video by wire, radio, or optical fibre.
The Ministry of Information and Broadcasting would like to define radio transmission rather broadly – as something that is over and beyond towers and satellites and covers the internet. It is interesting that everyone wants to grab internet services and the lucrative OTT (over-the-top) sector.
The Ministry of Information Technology governs it under the IT Act, but in 2020, it had to frame rules that empowered the Ministry of Information and Broadcasting to take over a critical part of its kingdom that relates to digital and social media transmission.
That Ministry is now coming up with a Broadcasting Bill that would authorise it to control an even larger swathe of the internet and OTT. So, we shall now have three ministries (two under the same minister) that will fight for the same internet and for controlling OTT.
The Bill Empowers the Government To Control Public Communication
This Bill intends to put several curbs on public communication that may effectively intimidate citizens. The ministry comes with freshly strengthened powers to shut down internet services quite arbitrarily and to intrude upon privacy and free speech.
As a whole, this legislation reeks of state hegemony and seeks to create a dystopian atmosphere of dominance, by going one step ahead of the existing colonial law, which itself was so imperiously pro-state.
The Bill legitimises and enhances the government’s almost unchecked powers to intercept communication. It also undermines the existing protection offered by some social media platforms with their end-to-end encryption and the state may soon rampage through the ecosystem.
With the government now empowering itself to intercept or block messages, the first target would obviously be the few free, non-asphyxiating spaces available like WhatsApp or Signal.
Thus, henceforth, cautious citizens would have to bottle up their grievances (“Big Brother is watching!”), while gutter-level rabid propagandists would flood these media with vitriol against minorities and dissenters, and continue to reign supreme on social media.
These depredations would also be under the cover of righteous phrases, like “the interest of public safety or public emergency”, “security of the state” and “prevention of incitement of offences.”
Telecom services may also be suspended on such grounds and social, political, and economic intercourse will be shattered in a polity that calls itself the mother of democracies, without any remedies or compensation.
A Statist Bill That Violates Citizens’ Privacy
India, incidentally, holds the world record for the largest number of suspensions of telecom services. Police officers do not appear to be sensitive at all to appreciate that the free telecommunications which they choke so frequently actually constitutes a fundamental right of citizens. Any complaint of economic losses on account of shutdowns falls on deaf ears and this Bill further strengthens such irresponsible hegemonic actions of the state.
Though the Bill touches upon some protection against tele-snooping and call interception, it has not laid down the procedure upfront. All it says is that these details will be prescribed by the central government through rules.
This gives the Executive a free hand to torment citizens, especially those who stand up to the regime. The Bill effectively allows for mass surveillance and empowers the government to violate our fundamental right to privacy.
One of the most dangerous provisions of the Bill is that it permits any officer authorised by the central government to search a premise or vehicle on some specified grounds, but such power without due process of law constitutes an invitation to bullying and corruption. It provides theoretical protection but neither specifies the procedure and safeguards against such actions nor provides that such safeguards will be prescribed.
This really tilts the scale against citizens. Even biometric or face verification of users may not be quite proportionate and are likely to encroach upon the fundamental right to privacy.
In fact, unlike in the finance, banking and power sectors, where independent or quasi-judicial regulators decide a lot of critical issues through open public consultation, the government is actually moving the telecom sector out of such transparency. The Bill says it is the government and its minions who will perform regulatory functions through rules that the government will determine, quite unilaterally.
Gaps in the Bill Pose a Grave Threat
Offences listed in the Third Schedule of the Bill would be modified at will – added, deleted, modified – by the almighty government and its technocrats and bureaucrats. There is a Memorandum at the end of the Bill that lists 35 items on which rules would be made by officials, which means that throughout the year, ministry babus would be making and remaking rules under an omnibus that screams that a hundred devils are lurking in its details.
Clause 28 of the Bill makes a mockery of the government’s duty to protect users from annoying messages that offer, advertise, or promote goods, services and hawks property, businesses, employment or investment.
It comes up with an unworkable ‘do not disturb’ mechanism that brings in consent in theory only. There are other provisions that are unabashedly pro-state, like those under Chapter III that define ‘right of way’ as one that extends itself over every category or property – private, public or social.
Telecommunication is surely an essential public service that has historically been a source of unimaginable profits for Big Tech and telecom oligopolies, but this Bill is so statist that it forgets that the end-users who pay and suffer are hapless citizens.
(Jawhar Sircar is a Rajya Sabha MP and a retired IAS officer. Among other positions, he has been CEO of Prasar Bharati, and Culture Secretary, GOI. Courtesy: The Quint.)
