Telecommunications Act - tl;dr
What?
On December 24th, 2023, The Telecommunications Act (2023) received the assent of the President. On June 21, 2024, the Ministry of Communications issued a gazette notification (link provided by the Internet Freedom Foundation) enforcing certain sections of this Act. This is a brief analysis of the good and bad of the Act that I was able to find while I read through the original document and the sections that have been implemented as of today (June 29, 2024). The sections that have come into force are 1, 2, 10 to 30, 42 to 44, 46, 47, 50 to 58, 61, and 62. The initial bill was prepared in 2022, and the Department of Telecommunications had also invited comments on the draft.
Why should you care?
The Act defines telecommunication and telecommunication services is as follows:
It's fair to believe that this definition of transmission may also cover the messages and data that you transmit over the internet, along with traditional broadcasting services, and will give the government the power of surveillance and control. From what has been laid down as the Fundamental Rights in Part III of the Constitution of India, in Articles 12–35, this Act puts into danger the freedom to speech and expression. While it may be useful in certain circumstances, such as a national emergency, to have control over things, the lack of details on accountability and procedural safeguards is what has raised eyebrows here.
Details
1. The definition of telecommunication services is vague and fails to define its scope. However, the bill from 2022 explicitly mentioned a list of services.
2. Use of any verifiable biometric based identification, such as facial recognition, to provide telecommunications services, as mentioned in 3(7) risks users rights to privacy and freedom of expression. When this data is being collected by on ground volunteers, retailers or third party associated with the service provider, a lot of data PII is at risk of being leaked. If this extends to the internet, forget the days when you got to be anonymous on the web. This probably also means that you may still have to link your mobile numbers to Aadhar, which was ruled as not mandatory by the Supreme Court.
3. Right to speech and expression will not be protected when the government has control over regulating telecommunications, as mentioned in 2(b) Section 20.
4. 1(a) Section 20 gives the government the power to take temporary possession of any telecommunication service, which can lead to internet suspensions at the government's will.
5. Section 22 (2) allows the government to collect, analyse, and disseminate traffic data.
6. Section 28 (2) is a strong step towards protecting users from spam in consonance with regulations notified by TRAI.
7. Section 42 & 43 give any officer authorised by the Central Government the right to search anywhere (building, vehicle, vessel, aircraft or others) in which they have a reason to believe anything authorised exists. This also sounds broad and vague.
8. I don't know if it's just me or if it sounds fishy to everyone else, but the provision under Section 51 makes the government and whoever acts upon instructions from the government proof of legal proceedings for anything done in "good faith."
9. Hefty fines are coming your way. While the Act doesn't talk about the limit of sim cards an individual may own, it supports the existing limits and imposes fines up to Rs. 2 lakh on offenders. If you didn't already know, the limit is 9 sim cards except for residents of J&K, Assam and the North East where it's 6.
10. Operators sending unsolicited commercial messages without user consent will also have to pay hefty fines.
While at some point the Union Minister of Communication Ashwini Vaishnaw reportedly told certain media houses and also reportedly posted on his LinkedIn that the OTT was not to be covered under this Act, there's nothing in writing. To me, the bills sound like the generation of iPhones - shiny exteriors but the same old software with little changes, let's wait to see if there's more clarification incoming!