India's New Telecom Law: Sweeping Powers to Government for Surveillance and Interception

India’s new Telecom Law grants the government extraordinary powers to take over telecom networks in emergencies, as well as broad powers for snooping, raising significant implications for privacy.

India’s New Telecom Law

India's new Telecom Law, the Telecommunications Act, 2023, which grants the government extraordinary powers to take over telecom networks in emergencies, as well as broad powers for snooping and surveillance, comes into force on Wednesday, 26th June 2024. The law also allows the government to suspend telecom services, including the internet. This comprehensive legislation marks a significant shift in the regulatory framework of India’s telecom sector.

Background

The Telecommunications Act, 2023, replaces the outdated Indian Telegraph Act of 1885, the Wireless Telegraphy Act of 1933, and the Telegraph Wires (Unlawful Possession) Act of 1950. These laws were enacted during British rule and were primarily focused on regulating telegraph infrastructure and services. However, with the evolution of communication technology to include voice, text, images, and video transmitted over various mediums, a modern legal framework became necessary.

The previous regulatory system was a complex, multi-tiered licensing and registration framework. Recognising the need for an updated approach, the central government initiated public consultations on a draft bill in 2022. The Telecommunications Bill, 2023, was subsequently introduced in Parliament in December 2023, swiftly passed by both houses, and received Presidential assent on December 24, 2023. Now, 26th June, 2024 has been notified to be the date on which it shall come into force.

Key Provisions and Implications

a.) Shift to Authorization Framework

The Act transitions from the earlier licensing regime to an 'authorization' framework. Entities providing telecom services, operating telecom networks, or possessing radio equipment must obtain authorization from the central government. This streamlines regulatory requirements but also centralizes control.

b.) Spectrum Allocation— Auction the Default Mode

Spectrum will be auctioned, except for certain specified purposes like national security, where it will be allocated administratively. This aspect of the Act provides statutory backing to spectrum auctions, ensuring efficient use of this resource. However, the administrative allocation for national security purposes raises concerns about transparency and fairness in the allocation process.

c.) Expanded Government Powers

One of the most contentious aspects of the Act is the expanded powers it grants the government. The authorities can intercept messages, suspend telecom services, and take control of networks for national security, public safety, or international relations. While these measures are intended to protect the nation, they also pose significant risks of potential misuse and violations of privacy.

d.) User Identification

Entities authorized under the Act are required to verify users through biometric identification. This provision raises serious concerns about privacy and cybersecurity risks, given the sensitive nature of biometric data.

Government's in Supreme Court on Spectrum Allocation

In April 2024, the central government sought clarification from the Supreme Court regarding its 2012 judgment that mandated spectrum allocation through auctions. The government aimed to determine whether it could allocate spectrum administratively in limited cases, such as for government functions, public interest, or technical and economic reasons. However, in May 2024, the Supreme Court registry refused to accept the government's clarification plea, describing it as misconceived and an attempt to seek a review of the 2012 judgment mandating spectrum auctions.

It now appears that the government has proceeded with the notification of this law, allowing for the limited scope of spectrum allotment through means other than auctions, hoping that the Apex Court will deem the enactment constitutional.

Offences and Penalties

The Act specifies penalties up to Rs 2 crore and imprisonment for up to 3 years for various offences. Critics argue that certain changes, including some statutory rules, should require Parliamentary approval rather than being enacted through government notifications, to ensure adequate oversight.

Regulatory Structure

Unlike other sectors where regulatory functions are delegated to independent bodies, many regulatory powers in the telecom sector remain with the government. This centralization of power could lead to conflicts of interest and reduced accountability.

Implementation and Immediate Impact

On June 21, 2024, the government notified that several sections of the Act would come into force from June 26, 2024. This includes provisions allowing the government to take over telecom networks, protect users from spam, and enable the right of way for network rollout. These measures aim to enhance network infrastructure and user experience but also consolidate governmental control.

Summing Up and Looking Forward

The Telecommunications Act, 2023, aims to modernize India's telecom sector, which has been operating under archaic colonial laws despite a digital and telecom revolution. While the emergency powers granted to the government might be appreciated by some, the provisions for routine surveillance without sufficient safeguards raise red flags for civil society proponents, NGOs, and legal experts. The Supreme Court of India has declared privacy a fundamental right, making these provisions particularly contentious.

The debate on these issues is expected to intensify as the new Parliament meets for the first time on Monday. Furthermore, the fate of Elon Musk's Starlink satellite-based internet, currently pending approval from the Government of India, might also be affected, given that the new law typically envisages spectrum allocation through auctions. The matter is likely to be escalated to the Supreme Court sooner rather than later, setting the stage for a significant legal and political battle.

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