Why in the News?
Telecom operators and social media companies are in conflict over the interpretation of the new Telecommunication Act. Telecom operators are arguing that over-the-top (OTT) communication platforms like WhatsApp and Google Meet should be classified as telecom services under the Act.
What’s in Today’s Article?
- Telecommunications Act, 2023 (Objective, Key Features, Issues, etc.)
- Telecommunications Act Pits Telecoms & OTTs Against Each Other
About Telecommunications Act, 2023:
- Earlier, the Indian Telecommunications sector was governed by three separate Acts of Parliament:
- Indian Telegraph Act 1885,
- Indian Wireless Telegraphy Act 1933,
- Telegraph Wires, (Unlawful Protection) Act 1950
- The Telecommunications Act, 2023 was brought in to consolidate these three separate Acts.
- Aim: To amend the existing laws governing the provision, development, expansion and operation of telecommunication services, telecom networks and infrastructure, in addition to assignment of spectrum.
Key Features of Telecommunications Act, 2023:
- Authorisation for telecom-related activities:
- Prior authorisation from the central government will be required to:
- (i) provide telecommunication services,
- (ii) establish, operate, maintain, or expand telecommunications networks, or
- (iii) possess radio equipment.
- Assignment of spectrum:
- Spectrum will be assigned by auction, except for specified uses, where it will be allocated on an administrative basis.
- Specified purposes include: (i) national security and defence, (ii) disaster management, (iii) weather forecasting, (iv) transport, (v) satellite services such as DTH and satellite telephony, and (vi) BSNL, MTNL, and public broadcasting services.
- Powers of interception and search:
- Messages or a class of messages between two or more persons may be intercepted, monitored, or blocked on certain grounds.
- Such actions must be necessary or expedient in the interest of public safety or public emergency, and must be in the interest of specified grounds.
- Telecom services may be suspended on similar grounds.
- An officer authorised by the government may search premises or vehicles for possession of unauthorised telecom network or equipment.
- Protection of users:
- The central government may provide for measures to protect users which include:
- (i) prior consent to receive specified messages such as advertising messages,
- (ii) creation of Do Not Disturb registers, and
- (iii) a mechanism to allow users to report malware or specified messages.
- Entities providing telecom services must establish an online mechanism for registration and redressal of grievances.
- Right of way:
- Entities laying telecommunication infrastructure may seek right of way over public or private property.
- Right of way must be provided on a non-discriminatory and non-exclusive basis to the extent possible.
- Appointments to TRAI:
- The Act amends the TRAI Act to also allow individuals with: (i) at least 30 years of professional experience to serve as the Chairperson, and (ii) at least 25 years of professional experience to serve as members.
- Digital Bharat Nidhi:
- The Universal Service Obligation Fund has been established under the Indian Telegraph Act, 1885 to provide for telecom services in underserved areas.
- The Act retains this provision, renames the fund as Digital Bharat Nidhi, and also allows its use for research and development in telecom.
- Offences and penalties:
- The Act specifies various criminal and civil offences.
- Providing telecom services without authorisation, or gaining unauthorised access to a telecom network or data, are punishable with imprisonment up to three years, a fine up to two crore rupees, or both.
- Breaching terms and conditions of authorisation is punishable with a civil penalty of up to five crore rupees.
- Possessing unauthorised equipment, or using unauthorised network or service, is punishable with a penalty of up to ten lakh rupees.
- Adjudication process:
- The central government will appoint an adjudicating officer to conduct inquiries and pass orders against civil offences under the Act.
- The officer must be of the rank of joint secretary and above.
Key Issues with the Act:
- Interception of communication:
- The Act provides that any message or class of messages between two or more persons may be intercepted, monitored, or blocked on specified grounds.
- Such grounds include:
- (i) the interest of the security of the state,
- (ii) friendly relations with other countries,
- (iii) public order, or
- (iv) prevention of incitement of offences.
- Telecom services may be suspended on similar grounds (e.g., internet shutdown).
- The Act allows mass surveillance:
- The Act provides that any message or class of messages between two or more persons, or relating to any particular subject, may be subject to interception, monitoring, or blocking.
- These actions will be subject to procedure and safeguards prescribed by the central government.
- Using these grounds, an order may be made to intercept or monitor all communication where a particular word or set of words is used.
- Such an order would require all communication of all users to be monitored.
- Hence, this raises the question whether such actions could be considered proportionate to the objective.
- Safeguards with regard to the power of search and seizure not specified:
- The Act allows any officer authorised by the central government to search a premise or vehicle on specified grounds.
- The officer must have reason to believe that unauthorised telecommunications equipment or network used to commit an offence is kept or concealed.
- The officer may also take possession of such equipment or network.
- The Act neither specifies the procedure and safeguards against such actions, nor provides that such safeguards will be prescribed.
- Need for biometric verification:
- The Act provides that telecom service providers must verify the identity of their users through any verifiable biometric-based identification.
- This requirement may not be proportionate, and may infringe upon the fundamental right to privacy.
Telecommunications Act Pits Telecoms & OTTs Against Each Other:
- Telecom operators and social media companies are in dispute over the interpretation of the new Telecommunication Act.
- Telecom companies argue that over-the-top (OTT) communication platforms like WhatsApp and Google Meet should be classified as telecom services, requiring government licensing, just like traditional telecom services.
- Despite the government's earlier clarification that OTT platforms do not fall under this definition, the telecom operators maintain their stance, citing the broad definition of telecom services in the Act.
- This ongoing debate highlights the ambiguity in the Act's language and the differing interpretations by stakeholders.
