Digital rights groups are criticising the draft India Telecommunications Bill 2022, terming it as an attack on citizens' fundamental rights and freedoms.
Groups such as United States-based Access Now and India's Internet Freedom Foundation and Software Freedom Law Centre have taken a uniform stand against the draft telecommunications bill which aims to supersede India's telecom regulatory framework which is currently based on a more than 100-year-old law.
The concern is mainly around Clause 24(2) of the bill, which expands the scope of surveillance to 'telecommunications services or telecommunication network'.
In the definition sections of the bill, telecommunication services are defined as over-the-top (OTT) communication services, internet-based communications, internet and broadband services and so on.
As a result, OTT communication service providers such as Whatsapp and Signal, which have end-to-end encryption (E2EE), may now also be required to intercept or disclose any message to an officer specified in the surveillance request or order.
“India’s Draft Telecommunication Bill is yet another attack on end-to-end encryption, and people’s fundamental rights and freedoms, following the invasive IT Rules, 2021,” said Namrata Maheshwari, Asia Pacific Policy Counsel at Access Now in a statement.
“E2EE is crucial not only for people’s privacy, free expression, and safety, but also to protect democratic principles. The Bill, and any framework impacting encrypted communications services, must categorically prevent measures to break, weaken, or circumvent encryption," Maheshwari added.
This is not the first time that end-to-end encryption has come under the scanner of the Indian government.
Internet Freedom Foundation notes that previously Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 had attempted to require OTT communication service providers to break encryption.
More recently, the encryption debate also figured as part of the IT Rules 2021; more specifically in one of its directions that require tracing the first originator of content on a platform.
It is important to point out that telecom companies in India had long been demanding that OTT players be brought under the ambit of the regulatory framework, as they offer similar services without attached licensing obligations, conditions and levies (such as licence fee).
For rights group such as IFF, the move to regulate OTTs have especially been surprising, since earlier, in 2020, the Telecom Regulatory Authority of India had issued clear recommendations against the regulation of OTT communication services
Loss of privacy and user rights
For IFF this draft telecommunications bill was an opportunity for the government to revamp the colonial-era Indian Telegraph Act. However, they note that several of the concerns regarding the 1885 Act, especially around surveillance, holds true also for the draft telecommunications bill.
"In anticipation of a new Bill that would finally do away with the colonial-era law that was the Indian Telegraph Act, we had hoped for a favourable outcome as one received in the fight for net neutrality. While this is a victory for the large telecom companies, it is a loss for innovation, transparency, privacy, and user rights," IFF said.
Software Freedom Law Centre also has a similar stand on the matter.
Prasanth Sugathan, Legal Director, SFLC said, “The draft Indian Telecommunication Bill, 2022 which has come after more than five years of the Puttaswamy judgment on privacy pronounced by the Supreme Court, has continued with the same provisions regarding surveillance and suspension of telecommunication services as in the previous Act."
Sugathan said that the bill has not considered reforming the current provisions surrounding telephone tapping and suspension of telecom services."It is imperative to have a proper mechanism for surveillance
with judicial and parliamentary oversight," Sugathan said.
Apart from interception, another concern that was highlighted by these digital rights groups was the provisions of internet shutdowns in the draft telecommunications bill.
The bill 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" in the interest of 'sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an office".
"India is the world leader of internet shutdowns, and has held this rights-abusing title for four consecutive years,” said Felicia Anthonio, #KeepItOn Campaign Manager at Access Now.
“Adopting the new Bill is a flagrant disregard for concerns raised by human rights groups regarding the proliferation of shutdowns in India and will only embolden authorities to continue this rights-harming practice with impunity," Anthonio said while requesting the government to adopt a progressive legal framework to protect human rights.
Sugathan from SFLC said, "The increasing number of internet shutdown orders issued across the country also shows the need for a proper mechanism to prevent misuse of the provision that allows for suspension of services."
Currently, the draft telecommunications bill has been released for public consultation and comments have been invited from relevant stakeholders till October 20, 2022.On September 23, Union Minister for Communications Ashwini Vaishnaw stressed that the bill will undergo a massive consultation process with a timeline of around 6-10 months for it to become a law.