Telecommunications Bill 2023 Clears Both Houses With No Clarity on OTT Services

The contentious Telecommunications Bill, 2023, was passed by the Rajya Sabha on Thursday, 21 December, bringing India one step closer to having a revamped legislative architecture for telecommunication in the country.

Next, President Droupadi Murmu would have to sign the legislation into law. A day ago, the Bill was passed by the Lok Sabha with minimum debate as two-thirds of the Opposition have been suspended from the Lower House.

Even the Rajya Sabha saw a total of 45 MPs being suspended over alleged misconduct, leaving only 49 Opposition MPs sitting in the Upper House.

At the outset, the Telecom Bill proposes to repeal and replace three "outdated" existing Acts. However, the 46-page legislation has led to fears of mass surveillance and threats to online privacy.

The Telecom Bill has attracted significant attention for two main reasons:

• The inclusion of online platforms such as WhatsApp under the same regulatory umbrella as telecom companies, though there is still some confusion looming over this aspect of the legislation.

• The sweeping powers given to the State, including powers to intercept or block messages between any persons relating to "any particular subject" in the event of a public emergency or in the interest of public safety.

Vaishnaw also moved to withdraw the Telecom Regulatory Authority of India (Amendment) Bill, 2008, in the Rajya Sabha on Thursday.

To brush up on the important provisions of the Telecom Bill, click here.

Does the Telecom Bill Regulate OTT Platforms?

In his reply to the Rajya Sabha, Vaishnaw touched upon many aspects of the Telecom Bill such as spectrum reform, Right of Way (RoW) reforms, protection of users, and more.

He said that the telecom sector is now a sunrise sector and further claimed that India had seen the fastest rollout of 5G networks than anywhere else in the world.

However, the Union minister failed to expressly clarify whether OTT messaging platforms such as WhatsApp come under the regulatory ambit of the Bill.

During the discussion in the Upper House, BJP MP Bhimrao Mahadik seemed convinced that the Bill excludes OTT services. "There is a need to bring them under regulation because we have no control over them or their content. They enable crime and affect our children. I think there should be an act for OTTs," he said.

But others have interpreted the definitions of terms such as 'telecommunication', 'message', and 'telecommunication service' to mean that the Bill could be applicable to OTT services. If that's correct, experts believe that provisions of the Bill could threaten end-to-end encryption and deal a blow to online anonymity.

"The definition of "telecom service" in the 2023 Bill is much shorter & doesn't mention the entities to whom the Act will apply to. The current ambiguous definitions do not make it explicitly clear that internet services (messaging, email, etc.) do not come under its ambit," the Internet Freedom Foundation (IFF) pointed out.

"It appears that a reference to “over-the-top” communications services – like WhatsApp and Signal – has been removed from the bill, but provisions remain broad enough for the government to be able to include these services, opening up the people who use these services to potential privacy abuse."

Access Now, international digital rights organisation

Interestingly, Moneycontrol reported on Thursday that big tech company Meta has also voiced concerns of facing regulation under the Telecom Bill in an internal email accessed by the news outlet.