A group of organisations and experts, including members of the Global Encryption Coalition, have called on the union government to withdraw the Draft Telecom Bill in its present form in light of its threat to end-to-end encryption (E2EE), along with human rights, individual security and economic growth. A letter to Union Minister for Railways, Communications, Electronics & Information Technology Ashwini Vaishnaw, urged the government to prepare a revised draft in consultation with stakeholders and experts, that does not undermine E2EE, and instead incorporates provisions to protect and strengthen this privacy and security enhancing tool.
“The broad definitions of “telecommunication” and “telecommunication services” in the Bill include over-the-top (OTT) services. As a result, any communication, such as video or audio calls, or messages, over a host of OTT platforms such as WhatsApp, Zoom, Signal, and Facetime would fall within the Bill’s purview. A number of these platforms offer E2EE for calls and messages to enable strong privacy and security, which the Bill puts at risk,” the letter stated.
Clause 24(2) in the Bill authorises the government to direct interception, detention, or disclosure of messages on broad grounds. The provision grants sweeping surveillance powers to the government, lacking safeguards that must be embedded in communications surveillance frameworks. It fails to carve out an exemption for E2EE services, and could easily be misused to break the security offered by E2EE services, it said.
The defining feature of E2EE is that no party other than the sender/caller and the intended recipient/s can access the content of the communication, not even the service provider itself. However, invocation of clause 24(2) in the context of E2EE communication channels, would therefore effectively make it impossible for service providers to offer E2EE, in violation of people’s right to privacy, physical safety, and freedom of expression, the letter added.
“Further, Clause 25 confers broad discretionary powers on the government to issue directions in respect of standards to be adopted by licensees, registered entities or assignees. Unless clearly prohibited, the provision could be misused to prescribe standards that have the effect of weakening or circumventing security tools such as encryption,” it said.
The letter stated that undermining encryption, including compelling circumvention techniques, violates human rights, including the right to privacy and freedom of expression under the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. Such measures also have a negative impact on the country’s economy and national security.
“Despite the clear benefits of encryption, the Bill is yet another attempt by the Indian government to thwart encryption, following the widely opposed IT Rules, 2021 – which imposed the traceability mandate, and are facing legal challenges before various Indian courts,” it said.
In another letter addressed to Minister Vaishnaw, various organisations including members of the #KeepItOn coalition demanded withdrawal of the Draft Telecom Bill 2022, stating that it grants unrestricted powers to both the union and state governments to suspend and limit telecommunication services when they deem it “necessary or expedient” to protect public safety.
“Internet shutdowns not only violate fundamental rights and disrupt people’s lives, but also provide opportunities for authorities to cover up human rights violations with impunity, which is impermissible in a democracy. Additionally, shutdowns exacerbate humanitarian crises during conflict and leave people in a state of confusion and mental stress,” it said.
Stating that India – as the world’s largest democracy, and second largest base of internet users – has an opportunity to draft an exemplary legislation that ensures the protection of human rights in the digital age, and encourages technological innovation, it urged the government to withdraw the Bill, and work on a revised draft, in consultation with stakeholders and experts. The revised draft must include strict limitations and safeguards pertaining to communications surveillance, including language to explicitly protect secure communications and end-to-end encrypted platforms, the letter said.