Comments on the Draft Telecommunication Bill, 2022

Addressing the entrenchment of telecommunication services in the lives of 21st-century, Indian netizens - and the realities, complications and opportunities they afford - is a must.

India's Department of Telecom recently released the draft of the Indian Telecommunications Bill, 2022 (Telecom Bill). With an aim to future-proof existing telecom laws and regulations through sweeping reform, the Telecom Bill broadens the ambit of what constitutes telecom services, makes a play at addressing fraud, and channels greater opportunity for surveillance and censorship to the state and central governments.

Digital Futures Lab's Aman Nair and xKDR's Rishab Bailey submitted comments on the Telecom Bill, generally feeling that the "State fails to adopt a forward-looking regulatory approach and instead imposes onerous obligations on the telecommunications ecosystem." Below is a summary of some major standout points in the joint submission.

On expanding the definition of “telecommunication services” and expanding a broad licensing framework:

Expanding “telecommunication services” to include Over The Top (OTT) & internet-based communication services means they now fall under the government’s telecom service licensing regime, imposing new obligations.
This would mean that services such as WhatsApp, e-mail and any other service with a messaging component would be required to obtain a license and comply with its rules. That’s increased market entry costs and a hindrance to innovation & growth in apps & content on the Internet.
Regulatory compliance is easier for larger incumbents, not startups trying to carve out their share of the market. Instead of modernising the regulatory framework, stringent norms due to licensing revert us to a “license raj” regime. This leaves little room for permission-less innovation
The Telecom Bill ignores the key distinctions between OTT communication services and access providers that imply they should be regulated separately. Access providers own the infrastructure that is necessary for the operation of OTT communication services - the former is a gatekeeper! Definitely not the same!
Conclusion: implementing a broad licensing framework represents a significant exercise of State power, and an intrusion into the rights of expression, association, privacy and business. It’s disproportionate and unnecessary.
Recommendation: the phrase “telecommunications” should be revised to exclude all services or applications in the content layer of the Internet including “OTT communication services”, “interpersonal communications services”, “email”, etc.

On requiring licensees to “unequivocally identify” users of their services:

A mandate to identify users (those who send messages and avail of services) essentially removes the possibility of online anonymity altogether. A blanket ban on online anonymity only moves India further towards a digital surveillance state.
Imposing such Know-Your-Customer (KYC) costs on the digital ecosystem, in the hope that fraud might be prevented, could be disastrous. This would pose a significant barrier to market entry and will only favour big players who are likely to be able to internalise costs.
Such a requirement will also only enhance the digital divide in India by limiting the ability of youth, women, marginalised communities, etc., to access Internet services under the safety of anonymity.
Conclusion: The id requirement is a disproportionate and arbitrary measure likely to significantly impact the privacy of users, increase costs of business in the digital ecosystem, and adversely impact access to communications in India.
Recommendation: The sections pertaining to this should be deleted from the Telecom Bill.

On the government being able to prescribe standards for the telecom ecosystem ranging from equipment to network, infrastructure and telecom services:

It fails to specify what the purpose of these standards is, the nature of standards that can be issued, or limit the government’s power in any way - the provision is overboard, lacks safeguards and is likely to lead to regulatory uncertainty.
Typically, standard-setting has occurred through organic processes & consensus-based mechanisms. Excessively intrusive standard-setting by the government could limit innovation, hinder the development of cutting-edge services, & lead to a less safe and secure digital ecosystem.
Recommendation: The Telecom Bill should limit standard-setting to telecom network/infrastructural elements and limit the grounds for issuing them. Mechanisms should be put in place to ensure standard-setting processes are open and consultative.

On the power of the government to intercept communications:

The Telecom Bill empowers the central or state governments to direct interception or disclosure of messages/communications, according excessively broad surveillance powers to the state.
Given the increased scope/ambit of the Telecom Bill in terms of extending its applicability to ALL telecom services, it is possible that services that, say, utilise end-to-end encryption, would be forced to re-engineer their platforms to enable traceability or identification of users.
Conclusion: These specific provisions contribute to a disproportionate invasion of privacy, expression and business rights.
Recommendation: The sections pertaining to this should be deleted from the Telecom Bill. Instead, a separate law governing surveillance should be put in place. This could harmonise surveillance practices and implement appropriate safeguards.

On recognising net neutrality:

Network or net neutrality implies that communication networks must treat all internet traffic equally. So, no blocking or interfering with internet traffic, no preferential treatment of some Internet Service Providers (ISPs) over others and no price discrimination.
Parliament, the Department of Technology and the Telecom Regulatory Authority of India have all been unanimous in seeking to prevent ISPs from engaging in the above practices, making India one of the first countries in the world to adopt net neutrality regulation. The Telecom Bill currently doesn’t address net neutrality.
Such a provision would enhance both consumer protection and regulatory certainty. Promoting and establishing an open Internet will aid the development of the digital economy by promoting competition and innovation.
Recommendation: given that net neutrality has been recognised as a key architectural/design principle of telecom networks, the Telecom Bill should also recognise and protect the principle of network neutrality.