What the draft Telecom Bill says about surveillance, network shutdowns

The Ministry of Communications released the draft of the Indian Telecommunications Bill, 2022, on September 21. It seeks to supersede the existing regulatory framework for the telecommunication sector, which is based on the Indian Telegraph Act, 1885.

Earlier, Minister for Communications Ashwini Vaishnaw had said that Bill would be technology-neutral and it will prioritise consumer protection, keeping in context hundreds of cyber frauds that are being perpetrated through telecom services. The Bill will also establish a clearly defined spectrum allocation regime, he said.

A look at the Bill shows that there is more to it, with proposed provisions on surveillance and internet shutdowns.

The draft will be open for comments till October 20.

What does it say about surveillance, internet shutdowns?
Under Chapter 6 of the Indian Telecommunications Bill, 2022, titled ‘Standards, Public Safety, and National Security’, the central government has introduced provisions to take up surveillance or suspend networks.

The Centre or a state government, or any officer authorised by these governments, in the interest of ‘sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an office’ can issue orders for surveillance or network shutdowns in writing.

What does the bill specifically say?

With regards to surveillance, the draft says that if the order meets the interest of sovereignty and other reasons mentioned above, messages to or from any person, or regarding any particular subject “shall not be transmitted, or shall be intercepted or detained or disclosed to the officer mentioned in such order”.

With regards to internet shutdown, the Section also gives provisions to direct that any communication to or from any person, relating to any particular subject “transmitted or received by any telecommunication network shall be suspended”.

What kind of messages can be covered under this provision for interception?

The draft bill specifically says that messages transmitted or received by any “telecommunication services” or “telecommunication network” can be intercepted. In the definitions section of the bill, the draft defines “telecommunication services” as over-the-top (OTT) communication services, internet and broadband services, fixed and mobile services, interpersonal communication services, internet-based communication services and so on.

The inclusion of OTT under the ambit of “telecommunication services” is particularly important because encrypted messaging platform such as WhatsApp, Signal are categorised under OTT services. Essentially, with this regulation the government is looking to intercept encrypted messaging platforms.

What happens in case of a war?
In the interest of “national security, event of war, or friendly relations with foreign states”, the government can suspend or prohibit the use of specified telecommunication equipment from specified countries or specified persons.

This is particularly important, keeping in context that the Indian government has already banned and suspended the usage of many Chinese apps.

What are the provisions for consumer protection?
The Bill has included measures for barring unwanted messages offering advertisements, services, property deals, business opportunity, etc.

The draft says that the Centre can bring in measures that would require the prior consent of users for receiving such messages. It also calls for the preparation of a Do Not Disturb register and mechanism for users to report such messages.

However, the provisions do not have any protection in regards to surveillance or network shutdowns.

Are there provisions for facilitating research and development in telecommunications?
The Centre has proposed the establishment of a regulatory sandbox for encouraging and facilitating innovation and technological development in communication. Moneycontrol