Why the new Telecom Act spells trouble

Certain provisions of the Telecommunications Act, which gives the government power to incept and stop messages, have come into effect on 26 June, as the union government partially notified the Act on Friday, 21 June.

This Act aims to replace the 138-year-old Indian Telegraph Act of 1885, the Indian Wireless Telegraph Act of 1933 and the Telegraph Wires (Unlawful Possession) Act of 1950, though the new law also retains several provisions of archaic 1885 Act. The new rules extend to the whole of India and also cover any offences committed or contraventions outside of India.

According to the notification, Sections 1, 2, 10 to 30, 42 to 44, 46, 47, 50–58, 61 and 62 of the Act came into force on Thursday, 26 June. 'The Central government hereby appoints the 26th day of June 2024, as the date on which the provisions of sections 1, 2, 10 to 30, 42 to 44, 46, 47, 50 to 58, 61 and 62 of the said Act shall come into force,' read the Gazette notification.

The new rules allow the government to take over control and management of any and all telecommunication services or networks, if it deems this to be in the interest of national security, friendly relations with foreign states or in the event of a war.

Section 20(2) of the Act states the government can stop the transmission of any message in the interest of public safety and during a public emergency. The government can also intercept messages if it considers there may be a threat to law and order. This provision also expands the number of government entities that may be able to intercept messages.

Section 20 in its entirety solidifies the colonial powers of the union government. If these provisions are extended to internet services, then it could have draconian consequences, experts believe.

Section 22(3), read with Section 2(f), empowers the Union government to notify ‘critical telecommunication infrastructure’ and issue measures related to the protection of such telecommunication networks and services. 'Protection measures listed include collection, analysis, and dissemination of traffic data, wherein ‘traffic data’ is defined as “any data generated, transmitted, received or stored in telecommunication networks including data relating to the type, routing, duration or time of a telecommunication”. This special categorisation and the Union government’s power to notify them, provide rules for their standards, and give them directions did not exist in the Telegraph Act, 1885,' the Internet Freedom Foundation (IFF) noted with concern in a statement when the Bill was brought in Parliament in 2023.

The Act also addresses the issue of unsolicited commercial messages. Operators sending such messages without user consent could face fines up to Rs 2 lakh and might even be banned from providing services.

There are new restrictions on all users, however, not only commercial ones.

Section 29 of the Act imposes a duty on users to not furnish any false information while establishing their identity for availing ‘telecommunication services’. 'If applicable to internet services, Section 29 will have damaging consequences for a user’s ability to stay anonymous while communicating,' said the IFF statement.

Section 43, meanwhile, confers quasi-judicial powers to any officer authorised by the union government to 'search any building, vehicle, vessel, aircraft or place in which he has reason to believe that any unauthorised telecommunication network… in respect of which an offence punishable under section 42 has been committed, is kept or concealed and take possession thereof'.

These search and seizure powers are accompanied by the power to summon information, documents or records in the possession or control of any entity if the union government believes it is necessary.

Critically, the vague definition of 'telecommunication' and 'telecommunication services' even in this last notification ensures that online communication services could include WhatsApp or other messaging or communication platforms as well.

The government, through this Act, has also changed the name of the Universal Service Obligation (USO) to Digital Bharat Nidhi, under the control of the Union government—which has fiscal implications as well

The USO fund was established initially with the objective of providing access to 'basic' telegraph services to people in remote and rural areas at affordable and reasonable prices. Now, all amounts payable towards the USO under licences granted prior to the appointed day shall be deemed to be amounts payable towards Digital Bharat Nidhi.

The sums of money thus received towards Digital Bharat Nidhi, per Section 24, shall first be credited to the Consolidated Fund of India — and the central government may, if Parliament confirms, credit such proceeds to the Digital Bharat Nidhi from time to time for exclusive utilisation towards meeting the country's telecom needs. Again, there is some ambiguity here, and it is not a straightforward utilisation.

Finally, the parts of the Act that came into force yesterday will also enable telecom companies to install mobile towers or lay telecom cables on private property.

It will also overhaul the existing licensing mechanism for telecom networks.