Amend preamble, clarify definitions in Draft Telecom Bill, IFF

The Internet Freedom Foundation (IFF) released its comments on the Draft Telecommunication Bill, 2022, asking the government to amend its preamble and provide clarifications on certain legislative and jurisdictional ambiguities. They also ask the government to limit its own powers and provide more protection to the user. You can read a detailed version of the recommendations here.

The draft telecom bill was released on 21st October this year and the government is accepting comments on it till 10th November, 2022. These comments can be sent to [email protected].

Below are some of the IFF’s major recommendations for improving the bill, followed by their reasoning:

1. The DoT must release all public responses received on the consultation paper “Need for a new legal framework governing Telecommunication in India”: In addition to making these responses public, the DoT (Department of Telecommunication) should also publish a whitepaper with “justifications and reasoning for introducing any changes in the Telecom Bill, 2022, and set up an institutionalised system of broad, multi-city, in-person stakeholder consultation. Moreover, a “Law Commission and/or an independent Standing Committee or expert body must be appointed to look into reforms for the telecommunication sector”.
   Reasoning: The DoT’s consultation paper “Need for a new regulatory framework governing Telecommunication in India” received 500 pages of responses, which it did not make public. “Due to this lack of transparency, we are unable to understand the reasoning and justification behind the introduction of several changes in the Telecom Bill, 2022. The consultative process followed so far is not commensurate with the ambitious and vital goal to establish a modern legal framework for the telecom sector.”
2. The preamble should include public trust doctrine: The preamble must include a reference to the “public trust doctrine” that governs the role of the Union Government in public resources allocation where it acts as a custodian or fiduciary.
   Reasoning: The preamble lacks specific references to, “diversity and plurality of information mediums” and, “freedom of speech and expression” which are vital objectives and must be expressly referred to within the preamble. In the case of Ministry of Information & Broadcasting v. Cricket Association Of Bengal & Anr, the Supreme Court (SC) said, “…monopoly of this medium (broadcasting media), whether by Government or by an individual, body or Organisation is unacceptable”. Further, the SC said, “As far as “trusteeship” is concerned, there is no cavil that the State holds all natural resources as a trustee of the public and must deal with them in a manner that is consistent with the nature of such a trust…,” in Natural Resources Allocation In Re , Special Reference No. 1 of 2012.
3. Online communication services should be regulated under the IT Act: Ambiguities should be cleared in order to avoid an overlap of powers between the DoT and MeitY (Ministry of Electronics and Information Technology). Online communication services should continue to be governed under the IT Act, 2000 and should not be a part of the definition of ‘telecommunication services’, as is the case in the current draft of the bill.
   Reasoning: The current definition of ‘telecommunication services’ would mean that online communication services will be treated on par with telecom service providers (TSPs), internet service providers (ISPs), and broadcasters.  This raises concerns as online communication services are already governed under the IT Act, 2000 by the MeitY, which causes overlap and leads to confusion. However, “this is not the first instance where online communication services have been converged with the telecommunication services (as defined by the TRAI Act, 1997)”. The National Digital Communications Policy, 2018, which replaced the National Telecom Policy, 1994, talked about the convergence of IT, telecom and broadcasting.
4. Define each service mentioned in the bill: The DoT must define each service (included in the definition of “telecommunication services”) to avoid a situation where “service providers with multiple functionalities are being dealt with on a case-to-case basis”. There must be defined parameters on what constitutes a “public emergency”, “public safety”, and “national security.
   Reasoning: New services have been included under ‘telecommunication services’ which are originally not included in the TRAI Act, 1997. Most of these new terms remain undefined. This increases the overall scope of ambiguity and overlap.  Moreover, terms such “public safety”, “national security” and “public emergency” remain undefined. “These undefined grounds may be misused by the government to intercept communication or to suspend internet services.” Under clause 51, “apprehended civil or criminal proceedings” is “not defined or elaborated on, thus leading to scope for ambiguity and misuse.
5. Define the term “apprehended” or remove it: This vagueness in clause 51 may lead to “overbroad requests for disclosure which could result in the violation of the right to privacy of users”.
   Reasoning: “Clause 51 states that if the government (Union, State or Union Territory) is satisfied that any information, document, or record in possession or control of any licensee, registered entity, or assignee is necessary to be furnished in relation to any pending or apprehended civil or criminal proceedings, then a specially authorised officer shall on the government’s behalf request such. Subsequently, the licensee, registered entity, or assignee will have to comply with the direction of such officer information.” There are several problems with this:
   • Parameters regarding what information can be furnished are missing.
   • Circumstances under which such information can be revealed are missing as there’s vagueness on what “apprehended” means here
6. Need checks and balances: Checks and Balances and accountability must be introduced with respect to the Union Government’s power to “prescribe licences as well as to suspend, revoke, curtail, and vary them”. Moreover, Clause 42(1) should be amended to include protections to limit the Union Government’s ability to alter the language and scope of the telecom bill.
   Reasoning: “The bill allows the Union Government, in exercise of its privilege, to grant any entity a license for providing telecommunication services. Thus, instead of democratising the telecommunication sector, it centralises more power with itself and introduces overburdening regulations on online communication services.” Through this, the Union Government is strengthening its own power, diluting existing checks and balances, and reducing accountability.Moreover, “Clause 42(1) empowers the Union Government to alter any schedule to the telecom bill by notification, except Schedule 3, to which alternation can be undertaken only through an amendment. This gives the Union Government the power to unilaterally alter language and thus scope of the Telecom Bill, 2022. Clause 24(1)(a) empowers the Union and State governments to take temporary possession of any telecommunication services. In addition to expanding its own powers to granting licenses, the Union Government has also diluted the powers of TRAI through Clause 46(f) and 56(g), thereby concentrating with itself the complete decision making power with respect to prescribing licences to various entities.”
7. Define time limit for suspension of services: “Grounds on which the government may take temporary possession must be defined and a limit on the time for keeping possession must be specified.”
   Reasoning: The decision to suspend, curtail, revoke, and vary a licence rests solely with the Union Government, according to Clause 7(1).
8. Need a privacy-based surveillance architecture: The bill must include “an improved surveillance architecture based on privacy, transparency, and accountability through independent judicial oversight.”
   Reasoning: The bill requires licensed entities to “unequivocally identify” all its users, and make that identity available to all recipients of messages sent by one user to another. This aims to end anonymity over the internet. The bill also expands the scope for surveillance to ‘telecommunication services’, which includes internet services as well. This “breaks existing protocols for the deployment of end-to-end encryption”.
9. Better regulations for internet shutdowns: “Access to the internet must be recognised as a right, rather than a service. Further, certain suggestions made by the Standing Committee on Communication and IT in its report on internet shutdowns such as review of the legal regime for suspension of internet services, establishment of a centralised database of internet shutdown orders, review of the TSTS Rules, diverse composition of the Review Committee, etc. must be accepted.”
   Reasoning: The telecom bill missed the opportunity for legal reform as it “fails to enact any provisions for judicial oversight over the suspension orders or to strengthen the powers of the review committee”. The current bill just replicates the Telegraph Act, 1885, of the colonial era.
10. No penalty when dealing with unlicensed services: Clause 47 should be amended to ensure that the users are not penalised for using services provided by an unlicensed service.
    Reasoning: “Schedule 3, S. No. 8 penalises a person or entity with a fine of up to 1 lakh INR for use of an unlicensed telecommunication network, infrastructure or network, either knowingly or having reason to believe it to be unlicensed. This is concerning as the ground “having reason to believe so” may be misused and may put the user at a disadvantage as it appears to place the burden on them to prove lack of knowledge about the licence status of any service provider.”

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