The Union Government introduced the Telecommunications Bill, 2023, in Parliament on December 18. The proposed law aims to introduce several structural changes to the current regulatory framework in place for the industry. These changes include stricter user verification requirements, transparency and precision on spectrum assignment, and streamlining of the licensing administration. The President proposed the Bill’s introduction under Article 117(1). He also suggested that it be considered a Finance Bill under Article 117(3) of the Constitution.
This Bill passed in both Lok Sabha and Rajya Sabha, will replace the existing framework for the telecom sector. The current framework includes the Indian Telegraph Act of 1885, the Wireless Telegraphy Act (1933), and the Telegraph Wires (Unlawful Possession) Act 1950. The aim is to preserve user interest and promote invention. A key objective of the Bill is to combat the risk of scam calls from international phone numbers.
The proposed Bill seeks to modify and merge the existing laws. The laws govern telecommunication services and networks’ growth, advancement, and functioning. The amendments will also cover the distribution of spectrum. They will address any relevant matters associated with it.
KEY ASPECTS OF THE BILL
Requirement of authorization
The Bill provides that only government-authorized organizations may offer telecom services. The government will later frame the regulations and requirements for securing this kind of authorization.
Prior authorization from the Central Government will be needed to offer telecommunication services, create, run, maintain, or grow telecommunications networks, or own radio equipment. Current licenses will remain in effect for the duration of their issuance. The licenses will remain in effect for five years if no time frame is stated.
Spectrum Assignment
Instead of entirely auctioning off satellite spectrum, Telecommunications Bill 2023 has cleared the path for its allocation. There are 19 services and organizations on the “first schedule,” where spectrum can be distributed administratively. Spectrum will be made available through auction to others.
It is noteworthy that administrative allocation, instead of auctioning, has been a standard procedure for assigning satellite spectrum globally. This is because national borders do not affect the satellite spectrum. This is in contrast to the terrestrial spectrum. The International Telecommunication Union (ITU) of the United Nations oversees satellite spectrum management. It also coordinates this work. The central government has the authority to reclaim or reassign any range of frequency. This allows them to adjust the allocation of radio frequencies as needed. Furthermore, the government can approve spectrum sharing, leasing, trading, and surrender. Spectrum sharing permits multiple users to access the same frequency band. Trading enables the buying and selling of spectrum rights.
The Bill gives the government the authority to seize control of telecom services in a public emergency temporarily. It also allows this action when public safety necessitates it. The government may halt message delivery in the event of a public emergency. The government may temporarily seize control of the telecommunications in an emergency.
Engaging “trusted sources” is paramount when procuring telecom equipment. The government has the authority to ban, restrict, or suspend the use of specific telecom equipment from individuals or nations as may be specified.
Provision for search and interception
The Bill grants the government broad surveillance powers like the one it will replace. Key provisions from the Telegraph Act have been entirely reproduced. This has substantial and profound implications for our digital rights. These provisions concern surveillance and suspension of the internet. In particular circumstances, messages or a class of messages between two or more people may be intercepted, tracked, or blocked. Such measures will be taken to maintain order and state security or to prevent incitement of criminal activity.
Exclusion of OTT Apps
OTT providers have been excluded from the telecom definition in the Bill. Platforms such as WhatsApp, Telegram, and Google Meet now have some breathing room.
DND Registration
The main goal of the Bill is to shield users from unsolicited and possibly unsafe communications.
The Bill gives the government the authority to implement policies. This would enable users to opt out of receiving specified messages. It would also allow users to create and manage do-not-disturb alerts. Additionally, the Bill would enable users to set up channels for reporting messages that violate this provision. Businesses that send these kinds of messages against the user’s consent will initially face a penalty of Rs.50,000 for breaking the rules. The Bill states that the fine will increase to Rs.2 lakh for each additional infraction.
The proposed law will make “Do Not Disturb” (DND) registration a legal requirement. The action aims to protect customers from spam calls and unwanted commercial messages.
Telecom service providers must set up an online grievance registration and redressal system.
CONCERNS REGARDING THE TELECOMMUNICATIONS BILL, 2023
1) Uncertainty surrounding applicability
The definition of “telecommunication” under Clause 2(p) r/w “telecommunication services” under Clause 2(t) is shortened and diluted. This creates uncertainty about whether the law applies to internet services. It is difficult to anticipate how the Bill will affect user rights or to analyze or effectively respond to it in the absence of this clarity. Whether deliberate or not, this definitional ambiguity leaves enough room for online communication services to fall under its purview. The law’s frightening requirements regarding possession, authorization, suspension, and monitoring will also apply to internet services if they fall under its purview. This will further jeopardize individual liberties and rights.
For this reason, the Bill should expressly exclude internet services from the definition of telecommunication and telecommunication services. This will prevent future expansion of its ambit.
2) Biometric authentication requirement
The Bill mandates telecom service providers to use any authenticated biometric-based identification to confirm the identity of their users. This requirement might be out of proportion and violate someone’s fundamental right to privacy. The fundamental right to privacy safeguards biometric data collection, storage, and utilization. Biometric data is personal data. This right was recognized in the case of Puttaswamy v. Union of India.
It is not recommended to use such technologies for routine procedures. This is especially true if there is no offline recourse or if there is no adequate data protection act in place. Also, the public does not understand how biometric data will be gathered, stored, and shared.
3) Jeopardizes privacy
Numerous instances show that the Telecommunications Bill violates user rights. Many of these instances directly violate the user’s fundamental right to privacy. One such invasive clause is Clause 3(7) of the Bill. It requires any authorized entity notified by the Central government to verify the identity of the person to whom it offers telecom services. They must use any verifiable biometric-based identification “as may be prescribed.”
The vague wording of Clause 3(7) will negatively impact the ability of users to remain anonymous when conversing if it applies to internet services. Vulnerable people who want to stay anonymous, like journalists and whistleblowers, may suffer as a result of this. Platforms like Twitter and Instagram presently allow users to communicate anonymously. From now on, they need to reclaim this characteristic to continue operating in India.
The Telecom Bill has not improved the nation’s approach to internet outages and surveillance. It needs to effectively address liability, openness, transparency, or privacy issues.
4) Issue of excessive delegation
As per the Bill, the central government will handle spectrum assignment and authorization for telecom-related operations. Central government secretaries will investigate complaints about violations of authorization or assignment terms and conditions. They will also hear complaints. TDSAT, established by the TRAI Act of 1997, will listen to the appeals. The national government may specify different conformance tests and telecom hardware, networks, and services standards. The central government will thus carry out several regulatory tasks.
The Telecom Bill 2023 grants the Union government excessive rule-making authority. However, it lacks sufficient safeguards, so it suffers from excessive delegation. Out of the 46 total instances, some are justified or even required for delegated legislation. However, the Bill leaves specificity for future rule-making. When clarifications are left open-ended, it raises increased ambiguity, imprecision, and concerns about arbitrary rule-making. For example, “may be prescribed” or “notified” in specific situations. This applies to offering an exemption from stipulated conditions for authorization, describing the length of time and mode of interception, and suspending telecom services.
A significant criticism of the Bill is that it significantly reduces the regulator’s authority. As a result, people worry that TRAI will end up being a toothless tiger.
5) Exemptions to media professionals: a mere sham?
The Bill exempts recognized media professionals from interception or imprisonment. However, it would compel all journalists to register as such with the telecom service providers. Every telecom service provider, including social media and other communication platforms, would require journalists to register. However, this might not give them the privacy and media liberties crucial to a democratic setup.
The Telecommunications Bill 2023, like its 2022 equivalent, has not discarded its colonial heritage. It missed an opportunity to implement reform.