The Indian government has issued a 40-page draft called the Draft Indian Telecommunications Bill 2022 that mandates internet-based communications platforms to obtain a license to operate in the country. In its current form, the proposal also grants the government the ability to intercept messages sent from these platforms in the event of “any public emergency or in the interest of the public safety”.

Indian telecom operators have been requesting regulation of apps like Whatsapp, Signal and Telegram for quite some time to level the playing field. The popularity of these apps immensely hurts their business as the customers no longer need pricey SMS plans. 

The more worrisome aspect of the draft, however, lies in the fact that if passed, it’ll have serious consequences for the OTT platforms, including the aforementioned ones, as the security and privacy of online messaging is one of the major factors driving users’ app choices. 

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What is the government’s idea of a telecommunication service?

The act is meant to consolidate and amend the laws giving the government exclusive rights to the provision, development, expansion and operation of telecommunication services, networks, and infrastructure as well as assignment of spectrum in the country,

While the government doesn’t explicitly state it’ll be intercepting any apps as the bill only mentions telecommunication services, the bill also defines telecommunication services as follows:

Service of any description (including broadcasting services, electronic mail, voice mail, voice, video and data communication services, audio text services, videotex services, fixed and mobile services, internet and broadband services, satellite-based communication services, internet-based communication services, in-flight and maritime connectivity services, interpersonal communications services, machine to machine communication services, over-the-top (OTT) communication services) which is made available to users by telecommunication

Section 2-21 of the Indian Telecommunications Act 2022

The government also holds the right to include any other services that the central government may notify to be a telecommunication service.

This means that essentially any internet messaging app operating in the country will fall under the aforementioned definition of a telecommunication service.

How it impacts you as an Indian?

Section 24 of the draft clearly states that in any public emergency or in the interest of public safety, among other things, the central or state government or any specially authorised officer can order any service as defined above to direct that any message or class of messages from any one person or class of people related to any particular subject to either not transmit or intercept (or detain or disclose) the message and report back to the authorities.

This, alongside other provisions described in the section, essentially give the government power to do the following:

• Take temporary possession of any telecommunication service, network or infrastructure from a licensee or registered entity.
• Order telecommunication services or networks to either restrict, intercept, detain or disclose any messages or class of messages to or from any person or class of people, transmitted or received over any telecommunication service or network.
• Suspend any communication to or from any person (or group) related to any subject and transmitted or received on any telecommunication means be suspended.

Additionally, the section ensures that press messages of correspondents from the central or state government cannot be intercepted or detained unless the corresponded themself is under fire from the aforementioned clauses.

The draft is also supposed to level the playing field for telecom providers in the country as they struggle to sell pricey SMS tariffs considering the popularity of apps like Whatsapp, Telegram and Signal, among others.

In its current form, the draft gives the government immense power regarding how the aforementioned apps and their peers operate in the country. This could mean a potential push toward SMS, playing straight in the hands of the telecom providers.

Presently the only good thing the draft proposes is that user consent is mandated before sending any advertisement or promotional messages. Users will also get a mechanic to report spam messages as well as one or more ‘Do Not Disturb’ registers to record consent to receive specific promotional messages.

Can the public retaliate?

Further in the draft, section 41 adds to the government’s power, clearly stating that the government can make any rule for carrying out the purpose of this act. In case such a rule needs to be modified or annulled, it is to be done without considering any damages, or as the draft describes it, ‘prejudice’ of anything done under the rule previously.

The Central Government may, by notification, make rules for carrying out the purposes of this Act, including any matter which is to be or may be prescribed, in respect of which provision is to be made by rules under this Act.

Section 41 -1 of the Indian Telecommunications Act 2022

The draft also protects the government from any lawsuits that might come their way from this blatant breach of privacy, clearly stating that no suit, prosecution or other legal proceedings, as stated in section 39 of the draft.

The Indian government is known for issuing public emergencies on a whim and has abused this in the past to issue multiple internet shutdowns in the country. Paired with the CERT-In cybersecurity directives announced in June, this further reduces internet freedom in the country as the government gets more and more power over any individual’s online privacy.

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