Regulating Net Neutrality
by Dinesh Jotwani
Advisor, The Indian Legal Foundation — a New Delhi based Think Tank Organization
POLITICS OVER NET NEUTRALITY
It is rare that Indian Parliament discusses technology issues. However, this session saw Rahul Gandhi raising the issue on Net neutrality, calling for universal access to Internet and accusing it of handing Internet to corporates. It’s going to affect the youth of nation, he added. Telecom Minister Ravi Prasad Shankar was quick to respond and assured that the BJP government is committed to providing equal access to Internet for all. Prasad added that it is Prime Minister Narendra Modi’s vision that Internet should be made available to people in a non-discriminatory manner.
Net neutrality stands for the proposition that the Internet should be provided by and available to all, on uniform and non-discriminatory terms. It’s a concept that provides service providers, such as Airtel, Tata, Vodafone and Reliance (collectively “ISPs”), to treat all internet traffic passing through it’s pipes in a non-discriminatory manner. They cannot charge differentially based on user, content, site, platform, application, type of attached equipment, or mode of communication. Whether the internet traffic consist of access to Whatsapp, Facebook, Google or it consists of a Russian porn site or Vegas Gambling den (as long as it is legal), the same needs to be provided with equal speed, bandwidth and priority.
Whichever Political Party you may side with, the Internet needs some regulations in favour of Net Neutrality. In India, the Net Neutrality regulations are enforced by Telecom Regulatory Authority of India (“TRAI”), and if Internet is unregulated, there will be potentially large number of cases pertaining to ISPs violations of net accessibility from consumers, content owners and Intellectual Property Holders. The Western economies have already seen ISPs to become powerful and engage in monopolistic, dominant and discriminatory practices. If TRAI did nothing then ISPs can disrupt access to websites that compete with their interests. Example, Airtel can decide to charge extra to access Whatsapp. Eventually these charges will trickle down to consumers. So yes, consumers want TRAI to step in, and keep the internet the way it is.
The throttling of Internet can be done in several innovative ways, and has been illustrated in some hypothetical ways below:
• ISPs can block Apps like Skype and Google Hangouts that provide voice and video connection among users. The justification is that that they have not obtained Government license and hence are unfair to Telecom Companies. Any voice and video connection made using Free Application is at the costs of ISPs.
• ISPs have large potential to receive money from stakeholders, such as Movie and Music industry to block peer-to-peer technologies, such as BitTorrent and Gnutella. Again this is at costs of the Users, who are unable to access peer-to-peer websites for their legitimate use.
• ISPs such as Airtel can also block competing Payment wallets. Airtel is entering into the payments market and they will certainly like their customers to use their payment solutions. They have vested interest in slowing down or blocking competitor’s payment solutions.
• Similarly, ISPs can be paid by an Application-Owner to run their app on fast mode. For example, Uber (a taxi aggregator) with big pockets can make preferential payments to Airtel to run their Application on faster dedicated bandwidth. This will be at the costs of other Taxi aggregators, such as OLA or TaxiForSure. The Airtel Customers will have no choice but to order Taxi from Uber, even if they prefer other brands.
• The ISPs can also decide to disable the FaceTime and other video-calling app on their customers’ iPhones unless they subscribed to a more expensive text-and-voice plan. They can thus separate rich customers (iPhone users) to pay more for their services.
• ISPs can use their authority to block or promote politically sensitive news and thus become a tool in the hands of politicians. The Government of the country can provide free access to websites and media houses that are its favorites, while discriminating against other news portals, especially this can influence the elections outcomes. Censoring websites by blocking them or promoting certain sites by providing them in Free-package, is obviously a net neutrality violation. It is now understandable what made Rahul Gandhi so angry in the Parliament.
All the above examples show discrimination – positive or negative in accessibility to the websites or application by an ISP. The Consumers does not mind being discriminated on the basis of different data plans, but the moment we give preference to one website or application based on a preferential plan, it smells of a violation of Net Neutrality.
ISPs use and like the term “Net Neutrality”, but are practically against it for several reasons. Foremost reason is that they defend their business models. They have purchased Government Licenses to provide broadband at humongous auction prices, and they certainly have to defend their revenue models. They argue that they are not merely dump pipes, but provide channel for content, and rightly have say in charging it’s customers for the use of pipes based on preferential treatment.
Ofcourse, the business world is full of examples of differential or discriminatory pricing. Don’t we pay differential rates for seeing TV channels, watching sports matches, accessing faster lines at Toll Plaza, seating in Movie Theater, traveling by business class in airlines or even attending temples in VIP queues. In these examples, no one agitates if business owner charges differential rates, then why should we ask ISPs to adhere to uniform policies on accessing websites and applications that pay them. They have a right to enhance their business revenues and any protest is against the Fundamental Right to practice any profession, or to carry on any occupation, trade or business, so enshrined under Article 19 (1) (g) the Constitution of India.
Facebook has recently announced to provide free Internet.org that is a pack of 32 websites being provided free of costs to Indian citizen. Ofcourse, Facebook will compensate ISPs for net usage on these registered 32 sites. Some argue that this arrangement is against the cannons of Net Neutrality, as only 32 sites registered with Facebook are being provided with free access and others are on the paid plan. While others argue that this is benefiting consumers as they do not have to pay to access these 32 websites under package from Facebook called “Internet.org”.
Further, by charging differential pricing ISPs can bring in faster, better quality service for customers. If Facebook pays Airtel with extra money to access its Internet.org plan, customers will benefit by getting Free Internet to access all 32-websites that have been selected by it. The differential pricing will also lead to more innovation, as ISPs will bring in good quality and useful services to their consumers.
DEFENDING NET NEUTRALITY
Whatever proponents of free business may justify, killing Net neutrality could potentially have drastic implications:
Higher prices will get passed onto consumers. We will see ISPs charging consumers for faster service and raise their subscription price.
Innovation will suffer if startups can’t compete with already established big companies. Google and Facebook can pay Airtel/Vodafone with higher charges on providing their subscribers with dedicated pipes containing their data. A small startup of Pune or Bangalore will not be able to make such payments and thus their applications or websites cannot be easily accessed by consumers. The truth is that ISPs can actually control the speed of any website unless said website/ business can pay the extra fees. The killing of net neutrality will create barriers of growth to young companies, throttling the Innovation.
Lastly, Consumers could get caught up in intra corporate disputes as ISPs will prefer their favorite Applications and Websites to be hosted and slow down accessibility to other competing websites. Tata will prefer that accessibility to Croma is easy for their subscribers and will not charge them for visiting Croma’s e-commerce website. At the same time, they will like their subscribers give slow access to websites from EasyDay or Reliance Fresh. Ultimately, it is Consumers who are caught in Corporate disputes. .
Internet companies would have too much power to decide what we can watch. Companies such as Airtel and Vodafone may block or slow down content, dictating what customers get to see and how fast.
LONG LIVE THE WEB
The debate on Net Neutrality got triggered with TRAI floating a “consultation paper” to decide on the following three things: 1) Licensing Charges of over the top (OTT) applications, if any?; 2) Licensing Charges for communication Internet companies (such as Google Voice, Viber, Whatsapp) , if any?; and 3) ability of ISPs to do “traffic shaping” and use differential pricing? The consultation paper had sought the response of the people till April 24, 2015 and it received more than a million responses till that date.
The reasons seeking comments on the consultation paper are unknown, but the stories are floating that TRAI took up cudgels on behalf of the Telecom companies to allow them to bring differential pricing. This was indeed suspicious move by TRAI and it moved the whole Indian political and technological spectrum. Meantime, Facebook and Airtel announced their own platforms – Internet.org and Airtel zero without waiting for TRAI decision or whether their platform violates the Net Neutrality principles.
In this whole suspicious atmosphere, Telecom minister Ravi Shankar Prasad has rightly reassured that Government supports net neutrality and will shortly take the final decision on the matter. He further reassured that Government may look into putting License clauses that prohibits Telecom companies to bring out plans that discriminate on the basis of accessibility or pricing.
The Government’s hypothesis needs to be supported – “Good” regulations are better than “No” regulations at all. We do not want Indian Government or TRAI to be silent on this important subject. If they remain silent and do not positively support Net Neutrality, ISPs on a later date can disrupt access to websites that do not pay them or compete with their interests. Indeed, the survival of Internet depends on TRAI and Government of India and it’s implementation and enforcement of principles of Net Neutrality.
ABOUT THE AUTHOR: DINESH JOTWANI
Dinesh has nearly two decades of experience and deep understanding of policy, law, technology and government relations, especially in software, trade, IPRs and internet law. Some of his career/ professional highlights are:
• Dinesh has been an in-house Counsel, Partner in Law Firms and has also been an Independent Consultant to several technology companies. Some of the noted names include, NCR Corporation, Techorneys LLP, Microsoft, Symantec and Evalueserve.
• He has also held executive positions in trade coalitions such as Federation of Indian Chambers of Commerce & Industry (“FICCI”), The Indian Legal Foundation (earlier called NBAI Foundation) and Business Software Alliance (“BSA”).
• Dinesh is Honors Graduate in Economics–Delhi University (1991), a post-graduate in Information Technology & Software Development – NIIT (1992) and also holds a degree in law (LL.b) – Delhi University (1994).
• Dinesh also holds two US Patents (7831544 & 8380687) on e-discovery processes used in litigation/ investigations and has authored a book “Interface between Competition Law and IPRs: A global perspective”, published by GIIP (2012).
Note: The article reflects Author’s personal view and does not reflect views of any organization.