Context

• Keeping an eye on the telecommunication regulatory framework Supreme Court issued substantive legal reform on surveillance laws in India. Union government has published the Draft Telecommunications Bill, 2022 to replace the Telegraph Act, 1885.

Background

• Over two decades ago, allegations of surveillance against politicians led to a CBI inquiry and report against V P Singh’s government. The allegations revealed that imaginary reasons were given for ordering phone tapping without authorization.
• Last years, many publications reported that phones of several dozen Indian journalists, lawyers and human rights activists had been compromised using an invasive Israeli-developed malware called Pegasus.

What is Draft Telecommunications Bill, 2022?

• The draft Indian Telecommunication Bill, 2022 is an attempt by the Department of Telecommunications (DoT) to consolidate various legislations presently governing the telecommunication landscape in India.
• The Bill seeks to replace three laws, the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933 and the Telegraph Wires (Unlawful Possession) Act, 1950.
• The new regulatory framework is to bring the law at par with technological advancements and remove obsolete provisions from the colonial era laws.

What are the current laws governing communication surveillance in India?

Communication surveillance in India takes place primarily under two laws:

• Telegraph Act, 1885: It deals with interception of calls.
• Call interception:Under Section 5(2) of this law, the government can intercept calls only in certain situations.
• For sovereignty:They include the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states or public order, or for preventing incitement to the commission of an offense.
• Free speech restrictions:These are the same restrictions imposed on free speech under Article 19(2) of the Constitution.
• Exceptions for journalists:A provision in Section 5(2) states that even this lawful interception cannot take place against journalists.
• Information Technology Act, 2000: It was enacted to deal with surveillance of all electronic communication, following the Supreme Court’s intervention in 1996.
• Electronic surveillance:Section 69 of the IT Act and the IT (Procedure for Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009 were enacted to further the legal framework for electronic surveillance.
• Data interception:Under the IT Act, all electronic transmission of data can be intercepted.
• Section 69 of the IT Act adds another aspect that makes it broader — interception, monitoring, and decryption of digital information “for the investigation of an offense”.

How the loopholes in the current system breaching the Data Privacy?

• No comprehensive data Protection Law:
• No comprehensive data protection law leaving ambiguities over several laws.
• A comprehensive data protection law to address the gaps in existing frameworks for surveillance is yet to enact.
• Unaccountable, opaque exercise of surveillance:
• The Telegraph Act contains broad and excessive powers of interception and surveillance of communications carried out through any telegraph.
• The surveillance power is principally contained under Section 5(2), and has resulted in an unaccountable, opaque and unconstitutional exercise of surveillance that has led to accusations across the political spectrum.
• Less transparency:
• Ministry of Home Affairs refuses to disclose even aggregate data on the number of surveillance orders issued by it each year illegally gathered evidence is being sought to prosecute people.
• For instance, the Bombay High Court about three years ago noted in a case that premier investigating agencies such as the CBI have used, interception orders (that) neither have sanction of law nor issued for legitimate aim.

Key features of the Draft Telecommunications Bill, 2022

• Broad Definitions:

• The Bill introduces a broad definition of ‘telecommunication services’.
• It now includes internet-based services, in-flight and maritime connectivity, interpersonal communications services, machine to machine communication services, and over-the-top (OTT) based communication services that are made available to users by telecommunication

• KYC and caller id requirements:

• The Bill requires licensed entities to ensure that they identify the persons to whom they provide telecommunication services.
• The Bill places an obligation on telecommunication service providers to do this through a ‘verifiable mode’, as prescribed by the government.
• Licensing, registration, and authorization:
• Under the Bill, four types of permissions are identified – license, registration, authorization and assignment.
• While the Bill does not differentiate between the four types of permissions, it clarifies that a license is only required for providing telecommunication services or operating telecommunication networks
• Wide ranging powers of Central Government:
• The Bill includes wide-ranging powers for the central and state governments in the event of a public emergency or in interest of public safety.
• These powers include taking temporary possession of any telecommunication services, suspension of transmission in cases of public emergency, interception/detainment/disclosure of messages, suspension of communications, or otherwise transmit certain announcements for public safety and national security purposes.
• User protection and duties: User has been declared as an important policy objective of the Government. It places a duty on users to not furnish false information, suppress material information or impersonate others when proving identity to avail telecommunication services.
• Offences and penalties: Any offence under the Bill may be punished with a fine, imprisonment, suspension of telecommunication services or a combination of the above. For companies, the employees who were responsible for the conduct or the business relating to the offence at the time the offence was committed will be punished.
• Dispute resolution mechanism: The Bill provides for the right of appeal before the appellate authority. It also creates an enabling provision for the Central Government to set up an alternate dispute resolution mechanism such as arbitration, mediation or other processes of dispute resolution

What are Concerns over the Draft Telecommunication bill, 2022?

• Regulatory overlaps:The broad of the definition of ‘telecommunication services’ include OTT communication platforms such as WhatsApp, Telegram, Signal among others, may potentially lead to regulatory or jurisdictional overlaps.
• Unchecked use of State powers:The Bill gives broad powers to the central government in prescribed situations without any accompanying checks and balances. The Bill empowers the central and state government to intercept messages in the interest of public safety and emergency without the providing clearly defined guardrails for it.
• Undefined National security: The term, national security is left undefined and does not match constitutional precedent or text which instead uses the phrase,in the interests of the security of state
• Users Less choice in the privacy and security of their digital footprint:
• Power to prescribe standards under Clause 23, which may result in regulations as recently issued by the Computer Emergency Response Team (CERT-In) that have resulted in the closure of servers or services by leading, global VPN providers such as Proton and TunnelBear.
• All of this practically means that users will have less choice in the privacy and security of their digital footprint, as these powers will lead to requirements to locally register and host data, and comply with requirements to identify users (KYC requirements).

Conclusion

• There should be some reasonable basis or some tangible evidence to initiate or seek approval for interception by State authorities. Any digression from the ethical and legal parameters set by law would be tantamount to a deliberate invasion of citizens.

Mains Question

Q. Any deviation from the moral and legal parameters set by the law would amount to a deliberate attack on citizens. In this context discuss the data privacy of citizens in the era of massive expansion of internet and mobile usage.

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