The passage of the Telecommunications Act, 2023 (Act) is expected to effectuate a radical shift in the regulation of the telecom sector in India, to keep pace with a fast-changing technological environment. Part of a larger slew of measures by the Central Government to modernise and update the digital and communications industry, the law constitutes a significant development as it replaces the earlier legislation which did not adequately address the several technological advancements. The Act, inter alia, lays down rules for spectrum allocation, provides for the establishment of an online dispute resolution system, and sets out measures for user protection.
While being welcomed by traditional telecom stakeholders, the Act has been critiqued for enabling government powers in a disproportionate manner, at the expense of user rights. In particular, provisions on interception and surveillance warrant attention.
Section 20 of the Act equips the Central or State governments with wide-ranging powers, including temporary possession and routing in the event of any public emergency, disaster management, or public safety. Further, the government is empowered to restrict transmission and intercept communication in the interest of sovereignty and integrity of India, defence and security of the State, friendly relations with foreign States, public order or to prevent incitement of commission of offences. Similar powers have been provided to suspend telecommunication services.
Additionally, section 21 of the Act empowers the Central Government to adopt a range of measures – in the interest of national security, friendly relations with foreign State, or in the event of war – including issuing directions on use of telecommunication equipment, standards to be adopted by assignees, and procurement of telecommunication equipment.
Government Surveillance: A Long History
Concerns surrounding the government’s surveillance powers under the revised framework are, while significant, not novel. The predecessor of the Act – the erstwhile Telegraph Act, 1885 – was infamous for empowering Central and State governments to take possession of licensed telegraphs, and order wide-ranging restriction and disclosure requirements on various communication. Further, rules under the Telegraph Act, 1885 empowered the government to issue orders of interception.
Implications For Industry And User Privacy
Government surveillance affects service providers and users alike. Accordingly, factors such as business continuity and user protection need to be central themes in any discourse surrounding the Act.
The definition of ‘telecommunication services’ remains ambiguous under the Act, being defined broadly enough to appear to cover traditional telecommunication services as well as over-the-top (OTT) telecommunication services. Accordingly, it remains unclear whether the Act seeks to regulate both traditional telecommunication operators as well as OTT telecommunication service providers.
While the IT Minister has verbally clarified that OTT services are not covered by the Act – an official clarification remains to be issued to this effect. Further, with rules yet to be issued, the ability to prepare for and understand the scope of surveillance and interception measures is severely restricted.
This directly impacts an OTT service provider’s internal operational protocols as well as contractual agreements, as any change to the previous regime of interception or surveillance powers of the government would have to be accommodated in the same. Such ambiguity in terms of the scope of application of the Act could affect the ease of business/ business continuity in the sector, with ripple effects on India’s journey towards a trillion dollar digital economy.
On the flip side, such interception and surveillance powers also affect a user’s privacy rights while availing telecom services. Not only would the users need to be well-informed about any potential intrusions to their communication, but they must also be equipped with prior knowledge of the government’s powers, their own rights, and effective means to safeguard them.
Therefore, keeping such impact on users and public in mind, the public consultation for subordinate legislation should have longer timelines so that perspectives of all stakeholders may be taken on board.
The Way Forward
Furthermore, while the Act has not yet come into force, the passage of the legislation means that entities would need to start preparing for compliance. On the issuing of subordinate legislation, service providers would need to incorporate changes in their terms and conditions. Operational procedures would require alignment with government timelines for interception access, and entities having global operations may have to undertake India-specific measures to comply with the requirements under the Act.
The Telecommunications Act, 2023 is a much-awaited legislation to modernise the telecommunications industry in India. In order to achieve its objectives in letter and spirit, it is essential for concerns on government surveillance and interception to be given due attention.
This may play out in its own timeline – however, the two priorities that should underline the discourse going forward would be the need to ensure business continuity, and to protect user rights adequately as the contours of the new framework emerge.
Sohini Banerjee & Anmol Bharuka are Research Fellows, Shardul Amarchand Mangaldas & Co. Inputs from Shahana Chatterji and Namrata Ramachandran are acknowledged. Views are personal and do not represent the stand of this publication.
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