Joining the DoTs: IFF writes to newly appointed DoT Secretary

We wrote to the new DoT secretary, welcoming him to the role and highlighting key areas that should be addressed in his tenure.

13 October, 2023
5 min read

tl;dr

The Department of Telecommunications (“DoT”) under the Ministry of Communications recently appointed Shri Neeraj Mittal to the post of Secretary. IFF wrote to him, welcoming him to his new role, and intending to foster a mutually enriching relationship between civil society and the DoT. We highlighted our areas of work and underscored our past engagement with the Department on various issues, while offering support and assistance in advancing digital rights in a way that champions constitutional rights at its core.

Our submissions

Communication services are deeply ingrained into the lives of everyday Indians. The DoT, through informed and transparent policy decisions, can play a vital role in protecting user interest and safeguarding our informational privacy. Our work with the DoT spans several themes (and years). With the appointment of a new secretary, we thought it best to drop a 'hello!', abreast him of our work generally and in specific to the DoT, and indicate our interest in building a mutually enriching (and productive) relationship between civil society organisations and policymakers. Through continued engagement, we hope that the new secretary can empathise and align with our mission to defend online freedom, privacy and innovation. Some pressing concerns that we highlighted in our letter are as below.

The Telecom Bill

As part of our work on safeguarding digital rights and freedoms, we have and will continue to engage with the draft Indian Telecommunication Bill, 2022 (“Telecom Bill”). In our assessment of the Bill, we have voiced concerns that it replicates language and choices used by the colonial Telegraph Act, 1885 and introduces provisions that may undermine constitutional rights and innovation in the digital sector.

The Bill, prima facie, retains an antiquated approach reminiscent of the draconian Telegraph Act, 1885. It enables overbroad surveillance without accountability or oversight, and empowers the DoT to suspend internet services without establishing procedural safeguards. The Bill undermines user privacy by suggesting an onerous KYC process, and user autonomy by penalising the use of unlicensed telecom providers. It additionally subjects to licensing a plethora of modern technologies without a meaningful understanding of how they should be regulated. Overall, the Bill is incongruent with the principles of net neutrality.

In October 2022, we had recommended that the Bill be withdrawn and had urged the DoT to set up an institutionalised system of broad, multi-city, in-person stakeholder consultation before taking it forward. We reminded the DoT of our requests in the letter. Further, recent media reports suggest that the Bill has been approved by the cabinet, and may further revise the scope of telecommunication services In the run up to the Telecom Bill potentially being tabled during the winter session of the parliament, we will continue to urge the DoT to pay heed to our enumerated concerns.

Net neutrality

As proponents of a free and fair internet, we engage with stakeholders and public entities on policy issues affecting net neutrality, and wish to continue to do so with DoT.

In 2022, we wrote to the DoT requesting the establishment of a Multi-Stakeholder Body (“MSB”). Due to lack of a response and action, we reiterated our recommendations and requested to engage with the DoT in our letter. DoT’s letter on ‘Net Neutrality Regulatory Framework’, states that it “shall establish a multi-stakeholder body with framework for collaborative mechanism among the stakeholders”. The establishment of a strong and independent MSB is also in consonance with the Telecom Regulatory Authority of India’s (“TRAI’s”) guidance titled ‘Recommendations on Traffic Management Practices (“TMPs”) and MultiStakeholder Body for Net Neutrality’. In line with these recommendations, we urged the DoT to establish an MSB to ensure that Internet Access Providers adhere to the provisions of net neutrality in their licence.

Secondly, though the adoption of 5G technology is imminent and vital to realising India’s digital vision, we have raised concerns in the past that some of its aspects may negatively impact user experience and innovation. Certain 5G use cases, such as network slicing and ultra reliable low latency communications, may also contravene principles of net neutrality. On September 22, 2020, TRAI had forwarded a set of extremely meaningful recommendations to the DoT regarding the enforcement of net neutrality principles by the Internet Service Providers (ISPs) and telecom networks. We reminded the DoT that it is yet to operationalise these recommendations.

Recently, we have been engaging with TRAI on its consultation paper on ‘Regulatory Mechanism for Over-The-Top (OTT) Communication Services, and Selective Banning of OTT Services’. We believe that the current definition of OTT services adopted by TRAI, and any classification of such services, will be unable to reflect the complexity arisen by the multiple functions performed by a service. Hence, on principle, we hold a preliminary view against the licensing and registration of OTT services, and believe that such sectoral intervention may violate net neutrality principles and user choice and freedom. Bringing online communication services under the same regulatory umbrella as telecommunication services will also lead to jurisdictional overlap, given that the Ministry of Electronics and Information Technology (“MeitY”) already regulates such services under the Information Technology Act, 2000 and Rules. We requested DoT to refrain from over-regulation.

Suspensions and blocking

IFF has monitored and pushed back on several counts of internet and telecom shutdown across India over the years. India continues to be the country with the most number of internet shutdowns in the world. We have provided legal assistance to petitioners before the Hon’ble Supreme Court in Anuradha Bhasin v. Union of India, (2020) 3 SCC 63 and Foundation of Media Professionals v. Union Territory of Jammu & Kashmir, (2020) 5 SCC 746. In both cases, the hon’ble Supreme Court recognised that the right to speech and the right to carry on any trade through the medium of the internet is constitutionally protected. Further, internet shutdowns must follow procedures and safeguards set down in law, including the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 and the Supreme Court’s guidelines in Anuradha Bhasin. When an internet shutdown is imposed, a Review Committee must be constituted under Rule 2(5) of the Telecom Suspension Rules, which will review all internet suspension orders within 5 days of their issuance and record its findings on the legality of such orders. We urged the DoT to adhere to legal and judicial compliances pertaining to telecom suspensions at every instance.

In the past, we have made requests to the DoT to publish executive orders issued to Internet Service Licensees for blocking URLs. We conveyed to DoT that we were pleased to note that court orders containing directions for blocking URLs that were issued to various Internet Service Licensees, as well as judicial orders for blocking notifications/ instructions, were duly published on the DoT website.

Important documents:

  1. IFF’s letter of welcome to the DoT Secretary (link)
  2. IFF’s public brief on the draft Indian Telecommunication Bill, 2022 (link)
  3. IFF’s response to TRAI’s consultation paper on OTT Regulation and Selective Banning (link)

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