“The (telecom) Bill threatens the open, globally connected, secure and trustworthy Internet (in) several ways”, said the non-profit organisation Internet Society in its report on the Draft Indian Telecommunication Bill, 2022. It criticised the government’s provisions for an extensive licensing framework, broad definitions and identity verification requirements in the bill.
We find that the Bill’s provisions undermine the critical properties of the Internet as well as the enablers of an open and trustworthy Internet. It places unnecessary barriers and burdens on businesses and users alike, and harms user privacy. – Internet Society
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Here are a few major problems in the telecom bill that the Internet Society flagged in its report:
- Expanded definitions: The most far-reaching impact the Bill has is through widely expanded legal definitions, Internet Society says. The bill expands the definition of ‘telecommunication services’, which by interpretation could include broadcasting services like Tata Sky, E-mails like Gmail and Yahoo, video communication services such as Skype, internet and broadband services such as Excitel, internet based communication services such as WhatsApp, Gmail, Zoom, Microsoft Teams, machine to machine services like smart cars, smart TVs and smartwatches, over-the-top services such as Instagram, Twitter and more. “The inclusion of potentially every communication system available, whether it uses spectrum or cable, or is Internet-based, has significant impact on the open, global, interoperable Internet”.
- Excessive licensing requirements: Clause 3 of the bill gives the government the exclusive privilege to provide telecommunication services, and also the power to exercise its privilege by granting a license to entities providing telecommunication services. “Thus, every entity within the ambit of a ‘telecommunications service’ including Google Meet, Signal, Gmail, Instagram, Zoom, Microsoft Teams etc. will be required to obtain a license from the Government of India to be able to continue providing services in India.”
- Privacy at risk: The telecom bill says that entities must “unequivocally identify the person to whom it provides services, through a verifiable mode of identification as may be prescribed.” These provisions take a person’s right to stay anonymous and this would have a negative impact on addressing cyber fraud as people’s data will be “more susceptible to theft, fraud will be easier to pull off, blackmail and other crimes will be easier—simply because data will be linked to people’s identity.”
- Encryption: Clause 24(2) empowers the government at the Union and State levels to block the transmission of messages, or to intercept or disclose them in certain cases, like when the government feels it is needed in the interest of the country’s sovereignty. To comply with these requirements, end-to-end encryption platforms will need to weaken security by providing backdoor or exceptional access to end-to-end encrypted content in order to provide government access.
- Internet shutdowns: Through the telecom bill, the government of India “cements” its powers to suspend internet services. “The Supreme Court of India, while hearing Anuradha Bhasin vs. Union of India (2020), also expressed its displeasure at the frequent Internet shutdowns and opined that Internet shutdowns should only be ordered in case they are absolutely necessary and only after carrying out balancing tests as a restrictive step. Further, in January 2020, the Supreme Court ruled that the right to access the internet is a fundamental right under Article 19 of the Constitution”.
How the telecom bill affects the realisation of the full potential of the internet
What the internet needs to exist:
The Internet Way of Networking (IWN) describes critical properties, that all together, “are what the Internet needs to exist and work for everyone.” These properties are: an accessible Infrastructure with a common protocol, a layered architecture of interoperable and reusable building blocks, decentralized management and distributed routing, a common global identifier system, and a technology-neutral general-purpose network. Internet Society’s report assesses the impact of the telecom bill on two properties of IWN. Here’s a brief on them:
- An accessible infrastructure for common protocol: This essentially means that you don’t need permission from a central authority to connect to the internet. “There is no international policy on who can connect or what they should pay; these factors are largely driven by the market, not a centralized authority.”
- The telecom bill, by expanding the definition of ‘telecommunication services’ and mandating every telecommunication service to seek a license to continue operating in the country, fundamentally undermines this Critical Property of the Internet.
- Schedule 3 of the bill lays out “a penalty for providing telecommunication services or establishing a telecommunication network without obtaining a license – imprisonment up to one year, or a fine up to INR 5 million, or both. Additionally, a person or entity may be fined up to INR 100,000 for using an unlicensed telecommunication network, infrastructure, or network, either knowingly or having reason to believe it to be unlicensed.” It is not possible for users of different backgrounds to be aware of the status of every service provider’s license.
A Technology Neutral, General-Purpose Network: The internet is designed to be a general purpose network and not optimised for voice, particular usage patterns, or special traffic characteristics. “The Internet is completely agnostic about the type of content that flows through it, guaranteeing neither quality nor connectivity, yet delivering enough of both to be a base layer for information services, commerce, communications, recreation, and more”.
- The network layer of the internet is where the network connections are made allowing different devices to connect with each other. This network layer is agnostic about data being passed between different networks. “In other words, this layer of the Internet does not and should not have the ability to gauge or filter data”. In contradiction to this, the draft bill allows for the Union and state or union territory governments to intercept, block, detain and disclose messages under certain circumstances.
- Moreover, “it will compel networks to invest in expensive data and content filtering mechanisms, delay data transmission and make interoperability nearly impossible”.
What the internet needs to thrive:
- Easy and unrestricted access: It is easy for both network operators and users to become a part of the internet. Network operators can add themselves to the internet’s infrastructure without “unnecessary regulatory and commercial barriers”. And affordable infrastructure empowers users to connect to the internet with minimal barriers.
- “This implies that there are no unnecessary barriers for connecting to and building services on top of the Internet’s infrastructure”.
- “The Telecom Bill counters this principle via its mandates for licensing, Know-Your- Customer (KYC) registers, and interception”.
- “The Bill’s provisions for Internet shutdowns without requisite checks and balances also impinges upon the unrestricted access to the Internet”.
- “The International Telecommunication Union (ITU) encourages voluntary agreements between telecom service providers and Internet-based service providers to nurture commercial cooperation. The provisions pertaining to licensing under the Bill are in stark contrast to the international practices envisaged at the ITU”.
- Unrestricted use and deployment of internet technologies: The technologies used to connect to and use the internet do not require permission from a third party. The internet’s “infrastructure is available as a resource to anyone who wishes to use it in a responsible and equitable way”. Mandating interception of messages during end-to-end encrypted communication “is against the unrestricted use and deployment of e2ee technology. With the traceability provision envisaged under Rule 4(2) of the IT Rules, 2021 being disputed before the Delhi High Court, the overarching mandate under Clause 24 of the Bill is unwarranted”.
Unrestricted Reachability: “Once a resource has been made available in some way by its owner, there is no blocking of use and access to that resource by third parties.”
“Internet shutdowns remain a disproportionate reaction that often only hides – instead of solving – a perceived problem, and can result in significant collateral damage. We believe Internet shutdowns harm societies, economies, and the global Internet infrastructure.”
- Available capacity: No one expects the capacity of the internet to be infinite, but there is enough capacity to meet the demands of the users.
“While the scope of use of the Telecom Development Fund has been enhanced to further increase the availability of Internet resources, the Bill missed the opportunity to foster collaboration between the Union, state, and district authorities for the maintenance of the existing telecom infrastructure. After twenty years of its introduction, about 50% of the Universal Service Obligation Fund remains unutilized. Despite the availability of funds there exists a stark rural-urban digital divide.”
According to the 2021 National Family Health Survey, 72.5 per cent of urban males and 51.8 per cent of urban females have used the Internet, against 48.7 per cent of rural males and 24.6 per cent rural females.
Internet Society’s recommendations on the telecom bill:
- “Withdraw the Telecom Bill, 2022, and start the consultation process afresh, in compliance with the Pre-Legislative Consultation Policy.”
- “Narrow the scope of overbroad definitions like ‘telecommunication service’ to only include businesses and entities that use spectrum for their operations. Exclude Internet-based services and applications from the ambit of a ‘telecommunication service’.”
- “Withdraw KYC requirements, as it will lead to digital exclusion of underprivileged sections of society and raise privacy and safety concerns for users.”
- “Withdraw the mandate for interception of messages envisaged in Clause 24(2)(a) of the Bill.”
- “Remove the provision granting the government authority to order an Internet shutdown.”
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