Draft telecom Bill: Govt must address privacy, licensing concerns

draft telecom bill
The draft telecom Bill skirts concerns over the draconian surveillance provisions built over the archaic laws of the British era that threaten the fundamental rights of citizens.

Draft Telecom Bill: The Union government has released the draft Indian Telecommunication Bill, 2022 for public comments. The Bill looks to update the country’s regulatory framework to the technological advances in the field. Through the legislation, the government is looking to consolidate and amend the existing laws governing the provision, development, expansion and operation of telecommunication services, telecom networks and infrastructure, as well as assignment of spectrum.

The new telecom Bill that will replace the Indian Telegraph Act (1885), the Indian Wireless Telegraphy Act (1933) and the Telegraph Wires Act (1950) describes telecom service as “service of any description… which is made available to users by telecommunication”. This essentially means that as millions of apps communicate between the phone and the cloud that hosts their programme fall under the new definition of telecom services.

Key amendments to existing laws

One of the major changes is the inclusion of over-the-top communication services such as WhatsApp, Signal and Telegram in the definition of telecommunication services. According to the draft law, providers of telecommunication services will be covered under the licensing regime, and will be subjected to similar rules as other telecom operators. Analysts say the draft needs to be revised if the government wants to bring apps such as WhatsApp under the ambit of licensing.

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The issue has been under consideration for several years now. The bone of contention here is that while the telecom service providers had to incur high costs of licences and spectrum, OTT players rode on their infrastructure to offer free services. Thus, they seek a level-playing field with OTT apps over communication services such as voice calls, and messages.

The telecom bill also has a provision to revert assigned spectrum back to the Union government in case a telecom entity in possession of it goes through bankruptcy or insolvency. Presently there is no clarity on whether the spectrum owned by a defaulting operator goes to the government or whether banks can take control of it.

Concerns over the draft telecom Bill

To make the law future proof, there is a need for liberating the online world from the dilapidated structure of accretive, piecemeal regulation resulting from a series of amendments to a law which has become obsolete in the wake of technological changes. In its present form, the proposed bill on the other hand is doubling down on the obsolete technology. Further, the government may also look at exempting some services from licence requirement instead of extending licence to every segment of the digital economy.

While the government allocates spectrums to select few, there is an increased need to free the spectrum so that anyone who needs it can use it by paying for it and withdrawing when the need is fulfilled. Thus, the spectrum becomes an asset which can be paid for and sold, should the need arise, instead of just going back to the government even when it is a paid for asset.  

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Safeguards are also needed for preventing misuse of national security provisions. The need is to clarify the grounds for breaching privacy and courts must come up to set the legislature so that security forces can also be held accountable.

The draft telecom Bill has nothing to address the draconian surveillance provisions built over the archaic laws of the British era. Experts have raised concern over the threat some of the provisions pose to the fundamental rights of citizens. It threatens online privacy of the citizens by undermining the encrypted apps. The Bill also has provisions for shutting down internet services at a time when Indians suffer the highest number of internet shutdowns globally.

Experts have also called for a new age law that licences and regulates communications infrastructure so that people can be left in peace to build businesses on the network, each tailormade to its own requirement but subject to regulation nonetheless.

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