The Dangers of Policy by Analogue in The Draft Indian Telecommunication Bill, 2022
India has the world’s second largest telecommunications ecosystem but a moribund regulatory framework guided by the Indian Telegraph Act of 1885, the Wireless Telegraphy Act of 1933 and the Telegraph Wires (Unlawful Possession) Act of 1950
India has the world’s second largest telecommunications ecosystem but a moribund regulatory framework guided by the Indian Telegraph Act of 1885, the Wireless Telegraphy Act of 1933 and the Telegraph Wires (Unlawful Possession) Act of 1950. In order to bridge this wide chasm between absent policymaking and a reality dictated by rapidly evolving communication technology, the Ministry of Communications started a public consultative process in early 2022 and released a draft bill on 21st September ’22 for public comments. Currently, the bill can still be commented on by members of the public till 20th November ’22 on the ministry website.
Given the complex nature of telecommunication in India, it is vital that such a bill adheres to robust and transparent guidelines, is dictated by a scholarly knowledge of both the technology and attendant social relationships it seeks to govern, and follows the best practices in securing both the security and civil liberties of people. Unfortunately, there are issues of concern in this bill which should be pointed out given the delicate nature of the task.
The second clause of the bill goes into definitions. In Clause 2.21 it defines “telecommunication services” as including “electronic mail, voice mail, voice, video and data communication services” as well as all “internet-based communication services”, and “interpersonal communications services, machine to machine communication services”. Then in Clause 3.2 it asserts that “The Central Government may exercise its privilege under sub-section (1) by granting to any entity … license for providing telecommunication services”.
Combining these two clauses in the bill, the straightforward implication is that all machine-to-machine communications, and this may include everything from email, social media, forums (like Reddit), independent servers (Discord etc), VOIP services like Skype/Zoom, are clubbed together with dissimilar entities like mobile providers and broadband services into the larger category of telecommunication services for which companies providing these services or infrastructure will have to apply for licences. This is an unprecedented overreach and would radically change the nature of the digital environment in India. If any machine-to-machine communication requires a licence, this would be applicable not just to company provided services like email or WhatsApp but also to owners of blogs or personal webpages with comment sections. Many international tech companies will choose to not purchase these licenses (or be unable to comply given the nature of the tech) and we might see an exodus of such companies from India. This flaw in the draft reveals the danger of trying to regulate technological systems with very different properties analogously. Furthermore, Clause 4.7 in the draft bill lays down the condition to obtain a license. The requirement is the company providing the service “shall unequivocally identify the person to whom it provides services, through a verifiable mode of identification as may be prescribed.” This goes beyond the analogue to older systems of telecommunication as even telegraph or post card services didn’t always demand identities of senders. In addition to this Clause 4.8 states that “The identity of a person sending a message using telecommunication services shall be available to the user receiving such message”. These two clauses, taken together with the ones previously described rule out any kind of legitimate anonymity or privacy of anyone from the internet. Even something as innocuous as an email service provider, say Gmail, in order to comply with this requirement will have to ensure the identity of all its Indian users by forcing them to identify themselves in a government recognised manner like attaching
All email ids with Aadhaar. Similarly, it will end Indian presence in most of the current social media websites. Making all machine-to-machine communications subject to that degree of surveillance may be a direct contravention to the Puttaswamy judgment, 2017, which ensures Indian citizens a Right to Privacy. Aside from the conceptual and constitutional flaw here, this kind of requirement is not technically possible for a wide variety of machine-to-machine communication providers and this technical impossibility to follow through has the potential to cause international embarrassment to the country, loss to local business, and downgrading of Indian technology professionals in the tech community. These are some of the main areas of contention in the bill, where the desire to club vastly different communication services into a singular category of “telecommunication services” has created issues. The Ministry would be well advised to revisit the draft, and citizens should do their public duty by reading the draft and submitting their comments on it by the deadline.
The author is Assistant Professor at Ashank Desai Centre for Policy Studies, IITB