The Telecommunications Act 2023: A Big Brother Attitude

The article elucidates the Telecommunications Act of 2023, portraying it as a crucial strategy concerning matters of privacy and government surveillance

A Brief Introduction: The Telecommunications Act of 2023

In the Telecommunications Act of 2023, the word ‘internet’ has been used only once in the entire Act despite a majority of contexts in the Act revolving around using internet services such as OTT messaging and regulating it. This shows how wide ‘telecommunications’ as a term has become. The telecommunications sector has seen a massive rise in the last decade leading to its wide interpretation and inclusion of various adjacent mechanisms and OTT messaging platforms such as WhatsApp, Telegram, etc. The Telecommunications Act, 2023 has replaced the 138-year-old Telegraph Act, 1885. The passing of the bill attracted a detailed discussion and criticism of it. Internet Freedom Foundation’s Apar Gupta puts out that this bill is a form of digital authorization being one step away from a surveillance state.

The Telecommunications Bill has been officially enacted into law following the President's assent on December 24, 2023.

It regulates any type of ‘non-physical’ communication a person has including online text messages, emails and calls as section 2 of the bill defines telecommunication as transmission, reception, and emission of ‘any’ messages by wire, radio, optical or other electromagnetic systems. Indian telecom operators like Jio and Airtel have been pushing for a level playing field in the telecommunication sector by bringing OTT platforms in the same group as they are. The ambit of regulation comprising of “possession, suspension or authorization” has been extended to all sorts of communication methods. One of the foundational guarantees given to telecommunication users is their right to privacy which cannot be violated unless there is any practicality with regards to any specific emergency as prescribed.

The Aadhar Mandate

Section 3(7) of the Telecommunications Act 2023 says:

any authorized entity providing telecommunication services must identify the registered user through a verifiable biometric verification as the central government prescribes.

No further explanation regarding the safeguards to the user under this has been mentioned which is quite worrying. The Telegraph Act though provides for the identification of a user by Aadhar makes it voluntary and does not restrict it. It also provides for identification through a passport and provides safeguards by not storing the verification information as stated in Section 4(6) and Section 4(7) of the Act.

It is highly likely to prescribe the use of Aadhar as biometric verification. This means that if a person has to open a WhatsApp account, Aadhar has to be linked to identify the user and the Aadhar information will be available in the government databases. The positive takeaway from this is that all the registered users will be valid and there is less chance of fake accounts leading to the curbing of the spread of misinformation.

The fundamental rights of citizens cannot be overlooked under the garb of national security and public tranquillity and this is where the safeguards related to the stored data come into focus considering that the Aadhar information is prone to leak because of the exploitation of the data due to the change in the mechanism of registering the user information. IDFC’s research titled ‘Integrating Aadhar and Voter ID Data: Promises and Dangers’ highlights the issues related to data privacy and the issue of data sharing between databases and whether consent will be required and can be revoked once given.

No Room for Anonymity

One of the very few positives of anonymity in social media is whistleblowing. Studies show that online whistleblowing has been triangular and carries out the reporting of contemporary wrongdoings either for financial incentives, pressure or opportunity. Some form of journalism is also linked to this when anonymity is preferred to share sensitive information. Section 29 of the Act says:

no user can furnish false information and suppress any material information, or impersonate another person, while establishing his identity for availing of telecommunication services.

While weeding out anonymity can be a good deterrent to curb cybercrime activities and misinformation, it may extend to curb information given out by journalists as well as the wrongdoings of the government. There is a deep need to protect the rights and special interests of journalists concerning online information sharing.

Government Garb Over the Service Providers and Exchanges

To state briefly, the Act gives power to the Union Government to suspend authorization (which can be read as a license) given to service providers. Section 22 of the Act deals with the protection of telecommunication networks and services. Section 22(2) gives power to the government to collect, analyze or disseminate traffic data (data that is exchanged) that is generated in the service.

Section 22 (3) gives power to the Union to declare a network as a ‘Critical Telecommunication Network’ which is related to national security and the disruption of these will lead to a negative impact on national security. The government will prescribe the standards for it. Simply put, ‘The Union Government is the big brother of Telecom networks at home’.

Interception of Messages

Ever since the bill got tabled in the Rajya Sabha, the most discussed issue was regarding the government’s role in end-to-end encryption. Reading the words of Section 19 (f) of the Act,

“The Central Government may notify standards and conformity assessment measures in respect of encryption and data processing in telecommunication”.

The encryption model in messaging platforms like WhatsApp is now under question as the government can prescribe requirements for those types affecting the service providers and users. Though the end-to-end encryption model claims that only the person sending or receiving the message can access it and the data is not stored with the service providers, some platforms like WhatsApp do not encrypt the metadata (metadata is the information and data on the users, source and the relationship with other data . This data can be used to know about other data) like its competitor Signal. So, there is a possibility of accessing the data and storing it. Now, the government can ask the service provider to confirm its policy with that of the rules prescribed.

Section 20(2)(a) simply says

“The Central government can intercept the messages and block its transmission on the occurrence of any public emergency or to prevent the security of the state and in the interest of the public and that data can be disclosed in an intelligible format”.

The question remains over what specifically can be classified as intelligible. We have to wait for the rules prescribed by the government for this. The same problem lies in this section. The usage of vague terms like security of the state and interest of the public makes it prone to misuse of law which may lead to abuse of law. The question remains over the encryption model of a platform. If metadata is also encrypted, the government cannot access the data even if there is compliance by the platform. How will the government intercept the messages then? In that case, the seizure of phones may take place which would be ‘abuse of law’. I believe that this bill opens a way to centralize the regulation of all telecommunication operators and mandates the operators in the country to have a uniform policy (as prescribed by the government).

The most important stakeholders here are the journalists. Any attempt to invade the privacy of journalists cannot be sustained let alone the seizure of their devices. Section 20(3) states that the interception of press messages of correspondents ‘accredited to the government’ would not take place unless their transmission has been prohibited under Section 20(2)(a). Thus, the possibility of cracking down the journalists remains in the name of public interest.

The intention may be to ensure the free flow of information from accredited journalists unless there are compelling reasons to restrict it as specified by law. This is a positive aspect since the are possibilities of hiding under the term ‘journalist’ to produce maligned information. The success of this depends on the absence of misuse of law which is a big sign of worry here.

Conclusion

While the Act was portrayed to undo the colonial print, the powers given to the colonial government have been retained in the current bill. It is not morally right to say that the government should not have powers over the telecom sector which has a huge potential to undermine the national security and public tranquillity of a country in today’s times. The government needs to have a hold over this sector but what matters is the extent of the power exercised. While some of the changes such as centralizing the sector can be seen as a positive step towards protecting the interest of the state, certain overarching powers related to the policy of encryption and interception make it prone to misuse and show the big brother attitude of the government in regulating the sector and has failed to uphold all its promises.