We are anonymous, we are legion

Netizen Report: Transparency Edition

praskrishna — 2011-11-09T04:31:48Z

Global Voices Online has carried a feature story, "Netizen Report: Transparency Edition". We at CIS had filed an RTI application about website blocking. This is reflected in this article by Rebecca MacKinnon which was posted online on 7 November 2011.

Here at Global Voices Advocacy we believe that transparency by governments and companies about how and when censorship and surveillance takes place is a base-line requirement if the Internet is ever to be governed in a manner that is compatible with free expression, dissent, and citizens' right to organize and assemble. Thus we applaud Google's latest Transparency Report - the company's fourth such report detailing government requests for user data and content removal, as well as the traffic flows (or lack thereof) to Google webistes across the world since July 2009. The new data for January-June 2011 contains more detail than in the past, including data on how Google responded to the requests and whether they were honored. The data comes with a list of caveats including that automated content removal is not logged and that some data cannot be released due to local law. Nonetheless, we hope that Google's data will provide an interesting snap shot of the state of Internet affairs and the data could be used to hold governments accountable to their censorship activities. We believe that if all Internet companies disclosed similar data, the world would be further on its way to being a better place. Many articles have been written analyzing the data. A few of them include:

TechPresident: Google Data Shows Government Internet Surveillance Far Outstrips Wiretap Requests
WIRED: U.S. Requests for Google User Data Spike 29 Percent in Six Months
Huffington Post:The 13 Countries That Request The Most User Data From Google
CNet: Google: Governments seek more about you than ever

Adding to the publicly available data about censorship around the world, the Open Net Initiative has released its research data on global Internet filtering, covering seventy-four countries.

Thuggery: Read the latest news on GVA about bloggers jailed in Egypt, Syria, and Kuwait and spread the word.

Surveillance: As GVA and others have recently reported, 13 Internet filtering devices produced by the California-based company Blue Coat have made their way to Syria. According to the Wall Street Journal, Blue Coat executives say that the company will not sell the devices to countries that are under embargo by the United States, and that the devices found in Syria had been sold to a dealer who claimed they were destined for Iraq.

The Wall Street Journal has had several other items related to the role of companies in global surveillance, including a report on how China's Huawei has been peddling its mobile phone tracking and censoring equipment to Iran.

In India, Research in Motion has set up a facility in Mumbai to help the Indian government carry out lawful surveillance of its BlackBerry services including the messenger chat service, but the WSJ reports that India still has no method to intercept and decode BlackBerry enterprise email.

In Russia, bloggers' influence has apparently made the Kremlin nervous. Reporters Without Borders has condemned plans by the Russian government to deploy new software to track “extremist” content on the web, highlighting concerns about an over-broad definition of “extremist,” and the arbitrary and disproportionate approach to punishment and sanctions against websites. For more on the Russian Internet be sure to follow Global Voices' Runet Echo Project.

Moving on the United States, The Guardian has a fascinating report on the super-secret Intelligence Support Systems World Americas conference held recently in Washington DC, at which surveillance professionals shared the latest surveillance technologies and innovations that they don't want you to know about. Hacktivist and friend of GVA Jacob Appelbaum managed to get in, but was thrown out.

On a more positive note in the United States, the Washington Post reports that since 2009 many Internet companies have been more assertive about challenging “national security letters” from the FBI requesting information about users.

The Guardian reports that Civil liberties and privacy groups in the United Kingdom have raised concerns about the deployment by the London Metropolitan Police of a "covert surveillance technology that can masquerade as a mobile phone network, transmitting a signal that allows authorities to shut off phones remotely, intercept communications and gather data about thousands of users in a targeted area."

Techdirt reports on the European Union's desire to have a “black box' built in to operating systems that would store a record of all of the computer's internet usage. The EU argues that this ability would be useful in cracking down on child pornography. The system that the EU is looking at as a possible candidate for role of ‘black box' is called LogBox. The developer of LogBox claims that the device is for preserving the freedoms and privacy of internet users, although Techdirt points out the fact that this device does little to ‘protect' the privacy of online users, it in fact, would make anonymous actions on the internet much more difficult and would provide governments and law enforcement a huge set of data on every internet user.

Censorship: The chief executives of China's 39 top Internet, telecom, and computer companies have agreed to “strengthen self-control, self-restraint and strict self-discipline” in order to “contain the tendency of spreading online rumours, pornography, fraud and other illegal, harmful information on the internet.” The move comes amidst a broader crackdown on the Internet and social media.

In India, the Bangalore-based Centre for Internet and Society submitted a right to information request to the government's Department of Information Technology, asking for more information about website blocking. Based on DIT's response the Centre observes that “The data provided by the government seemingly conflicts with the data released by the likes of Google." Their conclusion: "Either the DIT is not providing us all the relevant information on blocking, or is not following the law."

Courts in Belgium and Finland have ordered ISPs to block the Pirate Bay.

The U.S. House Judiciary Committee has recently proposed a bill aimed at protecting intellectual property online that some critics describe as the beginning of a "Great Firewall of America". The Electronic Frontier Foundation and others have detailed the bill's problems, including lack of due process, near certainty of over-blocking and abuse, imposition of excessive liability on Internet intermediaries, global legitimization of DNS censorship and potential fragmentation of the Internet, among other things. It is considered even worse than its evil fraternal twin in the Senate, the PROTECT IP Act which is also opposed by many tech companies and non-profit groups. Despite such opposition, the bill draws relatively broad support from lawmakers.

Net Neutrality: South African technology journalist Jan Vermeulen ran the M-Lab's Glasnost Test on South African ISP's to see whether their stated bandwith shaping policies match up with reality.

The growth of bandwidth intensive internet applications in South Korea has made Net Neutrality an important issue there. South Korean ISP's are reporting that it is becoming increasingly difficult to maintain neutral practices with content. The three largest telecommunications companies in Korea are worried by the rise of Smart TV's, which use Internet connections as opposed to traditional cable or satellite links to provide content. The ISP's want to charge companies varying amounts depending on the type and amount of content sent.

Internet Governance: ICANN held its 42nd public meeting in Dakar, Senegal late last month. Wendy Seltzer reported here on GVA why the seemingly arcane debates about domain name registrar accreditation is important. Konstantinos Komaitis, an active member of ICANN's Non-Commercial Stakeholder Group (Global Voices is also a member), describes the struggle that is taking place took place between governments and other ICANN stakeholders over whether some stakeholders are more equal than others within ICANN's multi-stakeholder governance model. Kieren McCarthy at dotNext also has an in-depth report and analysis on the clash between governments and registrars over law enforcement regarding domain names. Over at the Internet Governance Project Milton Mueller takes an in-depth look at the politics surrounding the Non-Commercial Stakeholder Group and related constituencies, and the fight for civil society representation at ICANN.

India has published a formal proposal to put the UN in charge of overseeing Internet governance. For different analyses by three Internet governance wonks see Kieren McCarthy, Milton Mueller, and Jeremy Malcolm.

The International Telecommunications Union has approved a new protocol for relaying biometric information. The protocol is intended to enable doctors to communicate data about patients safely and is geared towards developing countries where the access to medical care in rural areas is poor and communication between clinics and doctors would provide better patient care. You can read the full press release here.

Netizen Power: Lee Yoo Eun at Global Voices reports that the October 26th Seoul mayoral election was swayed by the use of twitter. Read the full article here.

African entrepreneur Herman Chinery-Hesse gave a speech at the Tech 4 Africa conference highlighting what the rise of Internet Communication Technologies has done for Africa. A synopsis of his talk can be found on the Tech4Africa.

Sovereigns of Cyberspace: Facebook has introduced a new “guardian angel” feature to help users restore locked accounts.

The 13th Austrian Big Brother Awards were held on October 25th in Vienna. “Winners” included the CEO of Telekom Austria, the Ministers of Interior and Justice, and the head of the anti-terror police unit. Mark Zuckerberg received the “lifelong menace” award and a “Defender of Liberty” award went to the creators of the “Europe versus Facebook” campaign.

The Silicon Valley Human Rights Conference was held in San Francisco in late October (see GVA's report, Jillian York's report, and The Economist's) and released the Silicon Valley Standard, a set of 15 principles that technology companies should follow in order to protect human rights.

China's Weibo plans to launch an English version in partnership with Flipboard and Instagram. Will they agree to follow the Silicon Valley Standard?

Security Alert: The security researcher Barnaby Jack has found it possible to conduct a blind attack on insulin pumps. While there have been no reports of anyone being harmed by such an attack, this highlights how far behind security technologies are when it comes to wireless devices that are embedded in critical infrastructure and medicine.

Publications: Digital Cameras Reduce Electoral Corruption by Michael Callen and James Long.

Events: Check out this handy calendar of Internet-related events around the world, courtesy of Internews!

Access Contested: Security, Identity, and Resistance in Asian Cyberspace, by the OpenNet Initiative, to be officially released in December. Part I of the book (including a chapter by yours truly) can be read online or downloaded here.

Note: This report was compiled with considerable help from Ted Eby and Weiping Li.

Read the original article here

For more details visit https://cis-india.org/news/netizen-report

Netizen Report: The EU Wrestles With Facebook Over Privacy

praskrishna — 2016-02-27T07:39:01Z

Global Voices Advocacy's Netizen Report offers an international snapshot of challenges, victories, and emerging trends in Internet rights around the world.

The blog post published in Global Voices on February 11, 2016 quotes Pranesh Prakash and Subhashish Panigrahi.

In the latest development in the negotiations between the United States and European Union over data transfer rules, Reuters reports France’s data protection authority gave Facebook three months to stop tracking non-users’ Web activity without their consent, and ordered Facebook to cease some transfers of personal data to the United States or face fines. In response, Facebook asserted it does not use the now-defunct Safe Harbor agreement to move data to the United States and instead has set up alternative legal structures to keep its data transfers in line with EU law. Despite this, Facebook was forced last year to stop tracking Belgian non-users after it was taken to court by the Belgian regulator. Last week, the United States and European Union agreed upon a new legal framework to replace Safe Harbor, but as it is not yet operational, several European data protection authorities are still deciding whether data transfers should be restricted.

Big Blow for Facebook’s Free Basics

Indian regulators officially banned “differential pricing”or discriminatory tariffs placed on data services depending on their content. This means that Internet users in India are guaranteed equal access to any website they want, regardless of how they connect to the Internet, ays Global Voices’ Subhashish Panigrahi. The decision is a particular blow to Facebook’s Free Basics application, which uses differential pricing mechanisms to make accessing Facebook, WhatsApp and a limited number of other websites free to users who do not pay for mobile data plans. Though Facebook promotes the program as a means to increasing digital access, it has come under backlash in India and a number of other countries. Internet policy expert Pranesh Prakash emphasizedthat though the ruling is a win for open access in India, these efforts must continue until India is truly and equally connected.

Google’s new scheme to combat online extremism

In an effort to combat groups like ISIS that recruit online, Google has launched apilot schemeto point users who search for extremist terms toward anti-radicalization links. It announced the new effort on February 2 at a meeting with the U.K. Home Affairs Select Committee on Countering Extremism. Representatives of Twitter and Facebook were also challenged by members of Parliament on their role in combatting the spread of terrorist material. Twitter announcedthat it had suspended 125,000 accounts associated with extremism since mid-2015 in response to pressure from the US government. However, as the New York Times’ Mike Isaac notes, “these companies must walk a fine line between bearing responsibility for their platforms and avoiding becoming the arbiter of what constitutes free speech.”

What’s going to happen to Ukraine’s database of ‘explicit content’?

The Ukrainian censorship body, National Expert Commission for Protection of Public Morality, dissolved last year, but its legacy lives on as a database of “explicit content” that no one in the government seems to know what to do with. The database includes a sizeable amount of content “containing elements of sexual nature and erotica,” but the commission was also well known for its attempt to ban Spongebob Squarepants, Shrek, and Teletubbies. Users have suggested the team responsible for dissolving the commission make the content more widely available, so they can see where taxpayers’ money went.

How to protect yourself from government hacking

Hacking human rights workers, journalists, and NGOs has become common practice for governments around the world, according to Amnesty International’s Morgan Marquis-Boire and Electronic Frontier Foundation’s Eva Galperin. In a post for Amnesty International, the two provide a brief history of government hacking and give suggestions for NGOs and human rights organizations to protect themselves.

Taking on Russia’s invasive surveillance

Two Russian Internet service providers are taking the Federal Security Service to court to challenge the surveillance system employed by Russian federal police to spy on Internet use. ISPs play a critical role in making surveillance possible, by installing expensive equipment that provides police access—making this case a significant affront to Russia’s invasive surveillance apparatus.

Telegram in Iran

Messaging app Telegram’s growing influence is being characterized as a major factor in the dissemination and spread of information leading up to Iran’s Feb. 26 parliamentary elections, but the platform’s susceptibility to state manipulation is also becoming more apparent. After the arrest of former BBC journalist Bahman Doroshafaei, the government took over his Telegram account and started to message his contacts. Some believe this was an effort to extract sensitive information or to distribute spyware. Fatemeh Shams, a friend of Doroshafaei, posted the following warning to her Facebook account:

Someone has been talking to me for two hours from Bahman's hacked Telegram account and now is chatting with my friends with my account..If anyone messaged you on Telegram [from my account] please ignore it. I've lost access to my account.

Mahsa Alimardani, Ellery Roberts Biddle, Hae-in Lim and Sarah Myers West contributed to this report.

For more details visit https://cis-india.org/internet-governance/news/global-voices-february-11-2016-netizen-report

NetGain: Working Together for a Stronger Digital Society

praskrishna — 2015-03-13T02:32:38Z

Sunil Abraham made a presentation at this event.

Join the conversation on Twitter using the hashtag #NetGain. This was published by the Ford Foundation.

We need everyone’s help to identify the biggest challenges that lie ahead of us. How do we balance security and privacy? How will we connect the entire world’s population? How will we archive all information and make this knowledge accessible? How can technology make democracies more participatory and responsive? Think big, and take the Netgain Challenge: Submit your ideas and help us focus on the most significant challenges at the intersection of the Internet and philanthropy.

Event Information

The Internet has transformed how we work, learn, and express ourselves. It has connected us with each other and sparked bold thinking about how to create a more fair and just world. Building that better world—and living in it—depends on an open, secure, and equitable Internet.

What is philanthropy’s role in addressing the challenges and potential of our digital society? Can we collaborate, as we have in the past on other crucial issues, to bend the arc of progress and ensure that everyone shares in the tremendous opportunity the Internet offers? Have we thought big—really big—about what the digital revolution can mean for the common good?

On Feb. 11, the presidents of the Knight, Open Society, Mozilla, and Ford Foundations—along with a special surprise guest—will come together with leading figures from government, philanthropy, business, and the tech world to launch a major new partnership, explore shared principles, and get ambitious about the next generation of innovation for social change and progress.

Read the press release.

8:45 – 9:30 am
Registration and Breakfast

9:30 – 9:45 am
Welcome
Darren Walker President, Ford Foundation

9:45 – 10:00 am
Keynote Address: New York City Mayor Bill de Blasio

10:00 – 10:45 am
The Internet, Philanthropy, and Progress: Principles for Future Work
Read the principles 139 KB

Introduction by Jenny Toomey Director, Internet Rights, Ford Foundation
Mitchell Baker Executive Chairwoman, Mozilla Foundation
Chris Stone President, Open Society Foundations
Darren Walker President, Ford Foundation
Moderator Gwen Ifill Managing Editor, “Washington Week”

10:45 – 11:00 am
Break

11:00 am – 12:20 pm
NetGain Challenges
Hosted by:
John Palfrey Head of School, Phillips Academy
Ethan Zuckerman Director, MIT Center for Civic Media

Presenters:
Ethan Zuckerman Director, MIT Center for Civic Media
Emily Bell Director, Tow Center for Digital Journalism, Columbia University Graduate School of Journalism
Alicia Garza Co-Founder, #BlackLivesMatter; Special Projects Director, National Domestic Workers Alliance
Sunil Abraham Executive Director, Centre for Internet & Society
Chip Pickering CEO, Comptel
Laura Poitras Filmmaker, “Citizenfour”
Chris Soghoian Principal Technologist, Speech, Privacy, & Technology Project, ACLU
Brewster Kahle Digital Librarian and Founder, Internet Archive
Joi Ito Director, MIT Media Lab

12:20 – 12:45 pm
Break

12:45 – 1:30 pm
Lunch Discussion: Celebrating 25 Years of the World Wide Web
Introduction by Alberto Ibargüen President and CEO, Knight Foundation
Tim Berners-Lee Inventor, World Wide Web
Susan Crawford Co-Director, Berkman Center for Internet & Society, Harvard University

1:30 – 2:00 pm
Break

2:00 – 4:30 pm
Citizenfour Screening and Discussion
Introduction by Eric Sears Program Officer, Human Rights, MacArthur Foundation
Laura Poitras Filmmaker, “Citizenfour”
Ben Wizner Director, Speech, Privacy & Technology Project, ACLU
Moderator Brian Lehrer Host, “The Brian Lehrer Show,” WNYC

For more details visit https://cis-india.org/internet-governance/news/net-gain-working-together-for-stronger-digital-society

Net neutrality: Trai receives over 2 lakh mails

praskrishna — 2015-05-08T02:11:15Z

The idea of an open internet can bring together not just worried netizens but politicians of all hues.

The article by Sandhya Soman and Jayanta Deka was published in the Times of India on April 14, 2015. Pranesh Prakash gave his inputs.

On a day when the Telecom Regulatory Authority of India got more than 2 lakh emails by Monday afternoon from Indian netizens annoyed by possible efforts to make internet an unequal space, AAP chief Arvind Kejriwal and DMK leader MK Stalin also defended net neutrality.

While Kejriwal tweeted that "India MUST debate #NetNeutrality. I support #Saveinternet campaign www.savetheinternet.in", Stalin in his statement said that any move to allow telecom companies to give preferential access to websites would go against the concept of equality.

Telecom minister Ravishankar Prasad, meanwhile, told media that a special DoT panel will come out with its report on net neutrality in May.

The latest fight for net neutrality — the idea that all traffic is treated equally by internet service providers — gained momentum after Trai put up a consultation paper on the topic asking users to give their views before April 24. The paper was in response to demands from telecom companies seeking to splice up internet into various packages so they could charge users based on what websites and services they were using. The companies' specific grouse is against services like Skype, Whatsapp and Viber, which they claim are eating into their profits.

"Net neutrality is about ensuring that ISPs don't end up harming universal access, effective competition and consumer benefit," says Pranesh Prakash, policy director, Centre for Internet and Society. This means that what Airtel was trying to do in December by preventing its customers from accessing WhatsApp, Skype and Viber without paying extra shouldn't be permitted, Prakash says.

One of the worst case scenarios could be the murder of innovation, says Srinivasan Ramani, 'director, National Centre for Software Technology (now, part of C-DAC).

"New ways of doing things are disruptive — Voice over Internet Protocol demonstrated how inexpensive voice calls could be. Video calls over the internet demonstrate what the old telephone technology could not do in a cost-effective manner, can now be done with ease," Ramani says. If ISPs get greater control over the internet they may end up killing the golden goose, he says.

Neutrality of the internet is essential to a wide variety of users, from bloggers, entrepreneurs and to students. "A non-neutral internet is like offering a separate driving lane to people who own a Ferrari, Mercedes or any other luxury vehicle," says Harsh Agrawal, a professional blogger atshoutmeloud.com. He is clear that he can't pay telecom operators to offer better speeds to his blog. "But what if one of my competitors can afford to pay for preferential treatment for his website? It could be a huge loss to me," Agrawal says.

E-commerce startup-founder Catherine Dohling has the same fear. "We want our website to be accessed by anyone who is interested in our products and this should not be governed by which telecom provider a person buys data from," says Dohling, co-founder of TheNorthEastStore.com.

Activists like Lobsang Tseten, who relies on digital media to reach out to people, fear that if there is no net neutrality, it could mean that a huge chunk of the NGO's grassroots base could be taken away unless users pay. "This is a very underhand way of stopping people from accessing certain websites and products," says Tseten, Asia regional coordinator of International Tibet Network.

With many biggies like Flipkart considering Airtel's Zero plan, which aims to offer free consumer browsing for such companies that sign up with the telco, start-up enthusiasts are also troubled. "An internet that is non-neutral would be a huge set-back for people like me who want to create a tech start-up. We would have to factor in a good sum of money for tie-ups with ISPs," says Rahul Kumar, an IIT-Kanpur student.

However, some activists say that some nuances of what is net neutrality are getting lost as the campaign gathers steam. On Monday, several angry netizens tweeted about uninstalling Flipkart's app and actively working to get it down voted. "What we need are regulations that ensure access, competition and benefit consumers instead of proposing specific outcomes or solutions," says Prakash.

For more details visit https://cis-india.org/internet-governance/news/the-times-of-india-april-14-2015-sandhya-soman-and-jayanta-deka-net-neutrality-trai-receives-over-two-lakh-mails

Net Neutrality: The argument continues

praskrishna — 2015-05-09T11:35:23Z

Opposing camps pitch their views on what zero rating and differential access to the internet would mean in India.

The interview was published by Forbes India magazine on April 29, 2015. Pranesh Prakash gave his inputs.

The debate on net neutrality in India is playing out on the internet, social media, television and newspapers. On one side, there are telecom service providers who believe in services such as zero rating and sponsor-enabled free access to the internet for consumers; on the other, there are proponents of free and fair access to the internet who consider variable access as a violation of the principles of net neutrality.

The Telecom Regulatory Authority of India (Trai) has launched a consultation paper, inviting views from the public to analyse the implications of the growth of internet services, apps, over-the-top services (OTTs) and consider changes required in the current regulatory framework.

To get both sides of the argument, Forbes India spoke to Rajan Mathews, director general at the Cellular Operators Association of India, and Pranesh Prakash, policy director at The Centre for Internet & Society (CIS), a Bangalore-based, non-profit, research and policy advocacy.

Q. How are zero rating and net neutrality linked? And if they are separate issues, what differentiates them?
Rajan Mathews: Zero rating and net neutrality are two separate issues. Net neutrality is about not denying access, and about the absence of unreasonable differentiation on the part of network operators in transmitting internet traffic. Zero rating is when operators subsidise tariffs as a result of commercial arrangements with application providers who do not discriminate against the customer, but provide a benefit. Zero rating is not a net neutrality issue since access to all content and applications remains open. Such arrangements increase social welfare by transferring the cost of internet access from consumers to content providers. If a content provider deems its revenues to be substantial and wishes to engage in distribution arrangements with last-mile access providers to subsidise access to its services, it should be allowed to do so. Zero rating should be the customer’s choice.

Pranesh Prakash: The issues of net neutrality and zero rating are intrinsically linked. Zero rating is the practice of not counting certain traffic towards a subscriber’s regular internet usage. The motivations for zero rating are many. Unbundling is one. For example, a consumer wishes to use a WhatsApp pack as opposed to accessing WhatsApp through the regular internet pack. Self-interest is another: Showcase the internet’s value through cheap or free packs of certain internet services so that customers graduate to higher data packages.

All forms of zero rating—zero-priced, fixed-priced, subscriber-paid or internet service provider (ISP)-paid, content-based or content provider-based—have one thing in common: They are instances of discrimination on the network. This links it to net neutrality, which, at its core, is a question about discrimination by ISPs.

We shouldn’t only be focussed on the existing models of zero rating while regulating it, but also on the models that may emerge in the future.

Q. Zero rating is seen as an attempt to give internet access to millions of Indians who can’t afford an internet connection. Is there a different, but net-neutral, way to do this?
Mathews: Zero rating is [offered] in the nature of a subsidy, which is prevalent and practiced in all forms of businesses. For example, MS Office is available at different rates to different consumers such as homes and businesses, students and enterprises. It is for the consumer to choose which version to buy. The same should be applicable to telecom services as well.

Prakash: Just because something provides access to the bottom of the pyramid doesn’t make it something we should have. For example, predatory pricing is something that might benefit all subscribers in the short term but, over time, it harms the market, competition and consumers. Suppose all ISPs are mandated to provide internet for free to everyone; in the short run, everyone will get free internet but it’s not a sustainable business practice for ISPs. If free internet can be sustainably provided, that’s not harmful. The current debate is to evaluate if we can ensure a method where we can have competition while providing access to the bottom of the pyramid.

For more details visit https://cis-india.org/internet-governance/news/forbes-india-april-29-2015-deepak-ajwani-debojyoti-ghosh-net-neutrality-the-argument-continues

Net neutrality: Net activism packs a punch

praskrishna — 2015-05-09T09:02:03Z

For the first time in the history of internet campaigns in India, a protest movement has successfully changed the course of a debate without having to take to the streets. The net neutrality movement is being fought almost totally in the virtual world. Hashtag activism isn't new in India. In recent times, several big campaigns have been bolstered by the internet which helped mobilize mass support and kept people constantly updated on events. Pink Chaddi, Jan Lokpal and the Nirbhaya movements were some examples of successful on-the-ground campaigns that were galvanized by social media. But they still needed public action — dharnas, candlelight vigils and actual pink undies — to make a difference.

The article by Sandhya Soman was published in the Times of India on April 19, 2015. Pranesh Prakash was quoted.

But the ongoing battle for internet freedom has proved that clicktivism isn't just about passive engagement with a cause. While it's all too easy to 'like' a cause, leading to what David Carr describes as "favoriting fatigue" in an article in the New York Times, some clicks can count in the real world.

It all started when the Telecom Regulatory Authority of India (Trai) posted a vaguely worded and complicated discussion paper on net neutrality and called for public responses to it. "Clearly, many people understood that some of the proposals put forward by Trai in its paper threatened the internet as they knew it," says Anja Kovacs, who directs the Internet Democracy Project and has closely followed online activism in India.

Soon, an unlikely collective of techies, lawyers, journalists and even stand-up comics had banded together. Some of them — such as tech entrepreneur Kiran Jonnalagadda and journalist Nikhil Pahwa — had been writing and tweeting about the issue for a while but the Trai paper galvanized them. "I dropped everything and asked for help. Kiran, (lawyers) Apar Gupta amd Raman Chima, Sandeep Pillai, standup group All India Bakchod and several Reddit India users (some of whom remain anonymous), started getting involved," says Pahwa, who is the founder of Medianama. The only common factor was their love for internet and an acute worry what this policy consultation might do to destroy its open and equal nature.

Though scattered across India, once they came together online, this 'apolitical collective' was able to rope in engineers, developers, open source activists, entrepreneurs, policy experts, lawyers and journalists as volunteers.

The best way to counter propaganda and opposition was to get people involved. An abridged version of the voluminous Trai paper was posted online, and a FAQ section created on a public Google Doc. "Many came forward to answer the questions and that exercise helped create an understanding of the situation," explains Pahwa. By the time, Jonnalagadda and a few other developers set up the savetheinternet.in website by April 1, there was enough information and data points. Lawyers Gupta and Chima had also decoded the legalese and prepared cogent answers to Trai's 20 questions. This was turned into a ready-to-use email template for users to hit 'send'.

And send they did. The flood of emails to the Trai inbox number is already 803,723 and counting. The results of the social media backlash are evident — with e-commerce retailer Flipkart pulling out of Airtel Zero and several websites backing out of Facebook and Reliance's internet.org. "I was hoping to get around 15,000 responses to counter, say, 15 from the telecom lobby. Now, people make fun of me because I said that," laughs Pahwa. In this case, what also struck a chord was the idea of a bunch of young guys using tech to take on mismanagement by the older generation and corporate greed, says entrepreneur Mahesh Murthy. "We were telling them we like things on the internet as they are now."

But it is hard to sustain online outrage without an action plan, relentless groundwork and some comic warfare. So, when the contentious paper came out on March 27, the website was followed by AIB's punchy video that decoded the concept and took irreverent potshots at those who wanted to limit access while urging people to write to Trai. A lot of the lessons for the campaign came from the US where a John Oliver video turned the tide in the net neutrality debate. "We had seen that several people don't take internet petitions seriously. Also, we wanted to follow the proper legal course in this issue and not hold dharnas," says Jonnalagadda.

It is also important for campaigns to result in doable action. As Kovacs points out, savetheinternet.in and netneutrality. in gave users practical tools to respond before the April 24 deadline. The team also kept clarifying doubts and complex concepts on social media and also had an AMA (ask me anything) chat on Scrollback on Saturday while the 'other side' stuck to big words and jargon.

Of course, like every movement, this one too has attracted criticism. The proneutrality band has been branded as socialist and utopian and there were intense arguments amongst supporters. "Disagreements and arguments are not unique to the activism online," says Pranesh Prakash, policy director at Centre for Internet and Society.

Earlier in the debate, Prakash had said he'd received strong pushback from friends and allies when he spoke about the possible benefits of non-competitive zero rating, an example would be allowing companies to offer free access to their sites and apps via an arrangement with a telecom company — if effective competition exists. Airtel Zero and Reliance's Internet.org claim to do the same though most supporters remain critical. Says Prakash: "There might've been differences. But the fact that a lot of people are thinking about effects of 'free', and comparing it to predatory pricing shows that #savetheinternet is one of the better examples of engaged activism."

Online campaigns have previously also successfully mobilized people to get involved in issues they do not know much about, says author Nilanajana Roy, who is an influential voice on Twitter. The J&K flood relief efforts last year started on Twitter but got volunteers moving on the ground, she says. "People don't always realize what they care strongly about so, despite the risk of compassion fatigue or armchair volunteerism, it's worth having some online activism," says Roy.

Meanwhile, those behind the savetheinternet campaign are struggling with their new-found identity as "activists". "I think of myself as a venture capitalist and marketing consultant, not a khadi kurta-jholawala from JNU," says Mahesh Murthy, among those who strongly support the movement.

And at the end of the day, most of these activists would like to go back to their cubicles, free to browse or start a business. But not before they've tried to keep the internet open.

For more details visit https://cis-india.org/internet-governance/news/the-times-of-india-sandhya-soman-april-19-2015-net-neutrality-net-activism-packs-a-punch

Net Neutrality: India is a Keybattle Ground

praskrishna — 2015-09-20T07:08:42Z

Hardnews talks to Sunil Abraham, the executive director of the Centre for Internet and Society (CIS), about the future of the Internet in India.

The article by Abeer Kapoor was published in Hardnews on August 10, 2015.

There are competing definitions of net neutrality. What do you think an Indian definition of net neutrality should be?
It should be driven by an empirical understanding of the harms and benefits for Indian consumers. Any regulation should be based on evidence of harm. Forbearance should be the first option for any regulator. The second option is mandating transparency. The third option, as (Managing Director of the World Dialogue on Regulation for Network Economies Programme) William Melody says, should be raising competition before we consider other more intrusive regulatory measures such as price regulation, mandatory registration and licensing, etc. Telling network administrators how to run their networks should be the very last option we consider. Ideally, the Competition Commission of India should have started an investigation into the competition harms emerging from network neutrality violations. There are other harms emerging from network neutrality violations, such as free speech harms, diversity harms, innovation harms and privacy harms. These residual elements should have been the focus of the TRAI (Telecom Regulatory Authority of India) consultation paper process, the DoT (Department of Telecommunications) panel process and the consultations of the parliamentary standing committee.

There are certain rights that are essential, like privacy. How do you think the right to privacy will play into the definition of Indian net neutrality?
Deep packet inspection – which is a method that is used to manage Internet traffic and walled garden access via mobile applications – causes significant privacy harms and gives rise to a range of security vulnerabilities. These cannot be directly addressed in network neutrality policy. On privacy and security, it is not clear that the Indian situation is different from the global trend, so it is unlikely that we will have an India-specific privacy language in our network neutrality policy.

Privacy harms caused by network neutrality violations have to be addressed by enacting the privacy bill into law. The Department of Personnel and Training (DoPT) has been working on this Bill for the last five or six years. The latest draft has implemented the recommendations of the Justice AP Shah Committee. The last leak of the privacy Bill revealed that the DoPT has included the nine principles identified by the Shah Committee Report on Privacy. We hope that the government will introduce this Bill at the earliest. Section 43A of the IT Act may also need to be amended to address all the nine privacy principles.

The report drafted by DoT on net neutrality is ambiguous and almost reluctant to take a stand. What are the key points of this report?
The DoT panel report does take a stand. It clearly identifies network neutrality as a policy goal. Unfortunately, the panel did not provide its own definition of network neutrality, but instead quoted a definition submitted by civil society activists who testified before it without explicitly adopting it. The panel report examines zero rating and legitimate traffic management in quite a bit of detail and does prescribe some regulatory decision trees to the policymakers. When it comes to specialised services and walled gardens there could have been more detailed and specific recommendations. The biggest disappointment in the report is the call for licensing of those OTT (Over the Top) service providers that provide equivalent services to those provided by telcos. While the need to address regulatory arbitrage from the perspective of privacy and surveillance law may be virtuous, it may not be technically feasible to do so, especially if there is end-to-end encryption. Also, regulatory arbitrage could be addressed by reducing regulations for telcos rather than increasing them for OTT providers.

Do you think licensing and regulation of OTT services such as Google and WhatsApp are a necessity?
It is a myth that they exist in a regulatory vacuum. Many regulations do apply to them and a few of them do comply with Indian authorities on issues like speech regulation, legal interception and also data access. With competition law and taxation there is very little compliance. The trouble is not that there are regulatory vacuums, but rather that these services operate from foreign jurisdictions. Without offices, servers and human resources within the Indian jurisdiction it is very difficult for the courts to implement their orders, and for law enforcement to ensure compliance with Indian laws. This jurisdictional challenge affects most developing countries and not just India, and can only be solved by harmonising procedural and substantive law across jurisdictions, through the spread of soft norms, development of self-regulatory mechanisms using the multi-stakeholder models and through the creation of international law through various multilateral and pluri-lateral bodies.

The report reduces the neutrality debate to ‘access.’ Do you think this approach is reductive?
Access is very important in the Indian context so I don’t see how that is reductive. Many observers believe that the next round in the war for network neutrality will happen in the global South. India is a key battleground – what happens here will have global impact and implications. Network neutrality policies need to consider free speech, privacy, competition, diversity and innovation goals of the markets they seek to regulate. If we are not being doctrinaire about network neutrality we could adopt what (Professor of Internet & Media Law at the University of Sussex) Chris Marsden calls forward-looking “positive net neutrality” wherein “higher QoS (Quality of Service) for higher prices should be offered on fair, reasonable and non-discriminatory [FRAND] terms to all comers”. FRAND, according to Prof. Marsden, is well understood by the telcos and ISPs (Internet Service Providers) as it is the basis of common carriage. This understanding of network neutrality allows for technical and business model innovation by ISPs and telcos without the associated harms. There are zero-rating services being launched by Mozilla, Jaana, Mavin and others that are attempting to do this. I do not believe that they violate network neutrality principles, unlike Airtel Zero or Internet.org.

While this report attempts to arrive at a middle ground between the TSPs and the OTTs, how is this going to reflect in the government’s ‘Digital India’ programme?
We know we have a policy solution when all stakeholders are equally unhappy. But we also need an elegant solution that is easy to implement. Scholars like (Associate Professor of Computer Science at Columbia University) Vishal Mishra have a theoretical solution based on the Shapley Value, that assumes a multi-sided market model, but this may not work in real life. Professor V. Sridhar of the International Institute of Information Technology, Bengaluru (IIITB) has a very elegant idea of setting a ceiling and floor for price and speed and also for insisting on a minimum QoS of the whole of the Internet. These ideas I have not heard in the American and European debate around network neutrality. I remain hopeful that the Indian middle ground will be qualitatively different, given that the structure and constraints of the Indian telecom sector are very different from that in developed countries. Ensuring network neutrality is essential to the success of Digital India. Unfortunately, the Digital India plans that we have heard so far don’t make this explicitly clear.

The Internet was never meant to be monetised. Do you think that private players are eating into a public good that is absolutely necessary for development?
I have never heard that statement before. The Internet, after its early history, has been completely built using private capital. The public Internet has always been monetised. Collectively, the individual entrepreneurs and enterprises that build and run the components of the Internet have created a common public good – which is the globally interconnected network. But the motivation for private capital behind maintaining and building their corner or component of this network has also been profit maximisation.

What has contributed to the growing need to regulate and administer the Internet?
Technical advancements and business model innovations have resulted in both benefits and harms and therefore there could be a rationale for regulation. But more regulation per se is not a virtue and does not serve the interest of citizens and consumers. Expanding the regulatory scope of government infinitely will only result in failure, given the limited capacity and resources of the State. Therefore, whenever the State enters a new area of regulation it should ideally stop regulating in another area. In other words, there is no clear case that the regulation of the Internet is needed to keep growing exponentially – as evolving technologies may require specific regulation – if the resultant harms cannot be addressed using existing law. In most cases, traditional law is sufficient to deal with crimes and offences online.

This story is from the print issue of Hardnews: August 2015

For more details visit https://cis-india.org/internet-governance/news/hardnewsmedia-august-10-2015-abeer-kapoor-net-neutrality-india-is-a-keybattle-ground

Net neutrality: Debate rages on

praskrishna — 2015-05-02T08:45:03Z

The article by Surabhi Agarwal was published in the Business Standard on April 11, 2015. Sunil Abraham gave his inputs.

Net neutrality campaigners have raised the pitch as the telecom regulator seeks public comments on the issue.

They argue any kind of discrimination will scuttle the Internet's growth in the country. Opponents claim technology may make it difficult for the government to stop network management.

A controversy was sparked after Bharti Airtel, the country's largest telecom operator, launched 'Airtel Zero' on Monday that allows companies to offer their applications to Airtel subscribers for free. The maker of the application pays the operator for the customer's free use. "It is wrong for me to have to pay Airtel or Vodafone money to access YouTube, Skype or any site they decide to charge for," Mahesh Murthy, founder of digital marketing agency Pinstorm, wrote in a blog on Wednesday. "What we do with bandwidth must be up to us, not up to some profiteering telecom tycoon," he added. Sachin Bansal, founder of e-commerce company Flipkart.com, on the other hand, tweeted, "When foreign companies do it in India - innovation. Indians do it - violation". Flipkart may have signed up with Airtel's Zero platform.

"Telecom companies are saying zero-rating websites (that are offered free like Facebook or Wikipedia) are cannibalising revenues from customers who used to pay for data earlier. It is also failing to convert non-data paying customers into paying ones, so it is not working for telecom companies," said a member of an Internet think tank who did not wish to be named.

The Telecom Regulatory Authority of India released a discussion paper on net neutrality in the last week of March and is seeking public comments by April 24 and counterviews by May 8.

Another Internet expert said people paying extra to visit select sites was like higher charges for high definition cable television. If net neutrality was restricted to price, consumers could decide what they wished to pay for, he added.

However, if websites or apps were blocked or telecom operators bumped up internet speed for certain services, the implications for innovation would be wider, he pointed out. "If the government is attempting to make a policy, it has to be as fair as possible," he said.

Sunil Abraham, executive director of the Centre for Internet Society, said ensuring network neutrality might be difficult, but the government could stop censorship and discrimination. "Competition usually resolves these issues. We have competition among telecom service providers and Internet service providers. This must be protected," he added.

For more details visit https://cis-india.org/internet-governance/news/business-standard-surabhi-aggarwal-april-11-2015-net-neutrality-debate-rages-on

Net Neutrality, Free Speech and the Indian Constitution – III: Conceptions of Free Speech and Democracy

gautam — 2014-05-27T10:21:24Z

In this 3 part series, Gautam Bhatia explores the concept of net neutrality in the context of Indian law and the Indian Constitution.

In the modern State, effective exercise of free speech rights is increasingly dependent upon an infrastructure that includes newspapers, television and the internet. Access to a significant part of this infrastructure is determined by money. Consequently, if what we value about free speech is the ability to communicate one’s message to a non-trivial audience, financial resources influence both who can speak and, consequently, what is spoken. The nature of the public discourse – what information and what ideas circulate in the public sphere – is contingent upon a distribution of resources that is arguably unjust and certainly unequal.

There are two opposing theories about how we should understand the right to free speech in this context. Call the first one of these the libertarian conception of free speech. The libertarian conception takes as given the existing distribution of income and resources, and consequently, the unequal speaking power that that engenders. It prohibits any intervention designed to remedy the situation. The most famous summary of this vision was provided by the American Supreme Court, when it first struck down campaign finance regulations, in Buckley v. Valeo: “the concept that government may restrict the speech of some [in] order to enhance the relative voice of others is wholly foreign to the First Amendment.” This theory is part of the broader libertarian worldview, which would restrict government’s role in a polity to enforcing property and criminal law, and views any government-imposed restriction on what people can do within the existing structure of these laws as presumptively wrong.

We can tentatively label the second theory as the social-democratic theory of free speech. This theory focuses not so much on the individual speaker’s right not to be restricted in using their resources to speak as much as they want, but upon the collective interest in maintaining a public discourse that is open, inclusive and home to a multiplicity of diverse and antagonistic ideas and viewpoints. Often, in order to achieve this goal, governments regulate access to the infrastructure of speech so as to ensure that participation is not entirely skewed by inequality in resources. When this is done, it is often justified in the name of democracy: a functioning democracy, it is argued, requires a thriving public sphere that is not closed off to some or most persons.

Surprisingly, one of the most powerful judicial statements for this vision also comes from the United States. In Red Lion v. FCC, while upholding the “fairness doctrine”, which required broadcasting stations to cover “both sides” of a political issue, and provide a right of reply in case of personal attacks, the Supreme Court noted:

“[Free speech requires] preserv[ing] an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee… it is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.”

What of India? In the early days of the Supreme Court, it adopted something akin to the libertarian theory of free speech. In Sakal Papers v. Union of India, for example, it struck down certain newspaper regulations that the government was defending on grounds of opening up the market and allowing smaller players to compete, holding that Article 19(1)(a) – in language similar to what Buckley v. Valeo would hold, more than fifteen years later – did not permit the government to infringe the free speech rights of some in order to allow others to speak. The Court continued with this approach in its next major newspaper regulation case, Bennett Coleman v. Union of India, but this time, it had to contend with a strong dissent from Justice Mathew. After noting that “it is no use having a right to express your idea, unless you have got a medium for expressing it”, Justice Mathew went on to hold:

“What is, therefore, required is an interpretation of Article 19(1)(a) which focuses on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A Constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion… Any scheme of distribution of newsprint which would make the freedom of speech a reality by making it possible the dissemination of ideas as news with as many different facets and colours as possible would not violate the fundamental right of the freedom of speech of the petitioners. In other words, a scheme for distribution of a commodity like newsprint which will subserve the purpose of free flow of ideas to the market from as many different sources as possible would be a step to advance and enrich that freedom. If the scheme of distribution is calculated to prevent even an oligopoly ruling the market and thus check the tendency to monopoly in the market, that will not be open to any objection on the ground that the scheme involves a regulation of the press which would amount to an abridgment of the freedom of speech.”

In Justice Mathew’s view, therefore, freedom of speech is not only the speaker’s right (the libertarian view), but a complex balancing act between the listeners’ right to be exposed to a wide range of material, as well as the collective, societal right to have an open and inclusive public discourse, which can only be achieved by preventing the monopolization of the instruments, infrastructure and access-points of speech.

Over the years, the Court has moved away from the majority opinions in Sakal Papers and Bennett Coleman, and steadily come around to Justice Mathew’s view. This is particularly evident from two cases in the 1990s: in Union of India v. The Motion Picture Association, the Court upheld various provisions of the Cinematograph Act that imposed certain forms of compelled speech on moviemakers while exhibiting their movies, on the ground that “to earmark a small portion of time of this entertainment medium for the purpose of showing scientific, educational or documentary films, or for showing news films has to be looked at in this context of promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues. Clearly, the impugned provisions are designed to further free speech and expression and not to curtail it.”

LIC v. Manubhai D. Shah is even more on point. In that case, the Court upheld a right of reply in an in-house magazine, “because fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions and unreasonable because there was no logic or proper justification for refusing publication… the respondent’s fundamental right of speech and expression clearly entitled him to insist that his views on the subject should reach those who read the magazine so that they have a complete picture before them and not a one sided or distorted one…” This goes even further than Justice Mathew’s dissent in Bennett Coleman, and the opinion of the Court in Motion Picture Association, in holding that not merely is it permitted to structure the public sphere in an equal and inclusive manner, but that it is a requirement of Article 19(1)(a).

We can now bring the threads of the separate arguments in the three posts together. In the first post, we found that public law and constitutional obligations can be imposed upon private parties when they discharge public functions. In the second post, it was argued that the internet has replaced the park, the street and the public square as the quintessential forum for the circulation of speech. ISPs, in their role as gatekeepers, now play the role that government once did in controlling and keeping open these avenues of expression. Consequently, they can be subjected to public law free speech obligations. And lastly, we discussed how the constitutional conception of free speech in India, that the Court has gradually evolved over many years, is a social-democratic one, that requires the keeping open of a free and inclusive public sphere. And if there is one thing that fast-lanes over the internet threaten, it is certainly a free and inclusive (digital) public sphere. A combination of these arguments provides us with an arguable case for imposing obligations of net neutrality upon ISPs, even in the absence of a statutory or regulatory obligations, grounded within the constitutional guarantee of the freedom of speech and expression.

For the previous post, please see: http://cis-india.org/internet-governance/blog/-neutrality-free-speech-and-the-indian-constitution-part-2.

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Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and presently an LLM student at the Yale Law School. He blogs about the Indian Constitution at http://indconlawphil.wordpress.com. Here at CIS, he will be blogging on issues of online freedom of speech and expression.

For more details visit https://cis-india.org/internet-governance/blog/net-neutrality-free-speech-and-the-indian-constitution-2013-iii-conceptions-of-free-speech-and-democracy

Net Neutrality, Free Speech and the Indian Constitution - II

gautam — 2014-04-29T07:42:40Z

In this 3 part series, Gautam Bhatia explores the concept of net neutrality in the context of Indian law and the Indian Constitution.

To sum up the previous post: under Article 12 of the Constitution, fundamental rights can be enforced only against the State, or State-like entities that are under the functional, financial and administrative control of the State. In the context of net neutrality, it is clear that privately-owned ISPs do not meet the exacting standards of Article 12. Nonetheless, we also found that the Indian Supreme Court has held private entities, which do not fall within the contours of Article 12, to an effectively similar standard of obligations under Part III as State organizations in certain cases. Most prominent among these is the case of education: private educational institutions have been required to adhere to standards of equal treatment which are identical in content to Article 14, even though their source lies elsewhere. If, therefore, we are to impose obligations of net neutrality upon private ISPs, a similar argument must be found.

I will suggest that the best hope is by invoking the free speech guarantee of Article 19(1)(a). To understand how an obligation of free speech might operate in this case, let us turn to the case of Marsh v. Alabama, an American Supreme Court case from 1946.

Marsh v. Alabama involved a “company town”. The “town” of Chickasaw was owned by a private company, the Gulf Shipbuilding Corporation. In its structure it resembled a regular township: it had building, streets, a sewage system, and a “business block”, where stores and business places had been rented out to merchants and other service providers. The residents of the “town” used the business block as their shopping center, to get to which they used the company-owned pavement and street. Highway traffic regularly came in through the town, and its facilities were used by wayfarers. As the Court noted:

“In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.”

Marsh, who was a Jehovah’s Witness, arrived in Chickasaw with the intention of distributing religious literature on the streets. She was asked to leave the sidewalk, and on declining, she was arrested by the police, and charged under an anti-trespassing statute. She argued that if the statute was applied to her, it would violate her free speech and freedom of religion rights under the American First Amendment. The lower Courts rejected her argument, holding that since the street was owned by a private corporation, she had no constitutional free speech rights, and the situation was analogous to being invited into a person’s private house. The Supreme Court, however, reversed the lower Courts, and found for Marsh.

Four (connected) strands of reasoning run through the Supreme Court’s (brief) opinion. First, it found that streets, sidewalks and public places have historically been critically important sites for dissemination and reception of news, information and opinions, whether it is through distribution of literature, street-corner oratory, or whatever else. Secondly, it found that private ownership did not carry with it a right to exclusive dominion. Rather, “the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.” Thirdly, it noted that a large number of Americans throughout the United States lived in company towns, and acted just as other American citizens did, in their duties as residents of a community. It would therefore be perverse to deny them rights enjoyed by those who lived in State-municipality run towns. And fourthly, on balance, it held that the private rights of property-owners was subordinate to the right of the people to “enjoy freedom of press and religion.”

No one factor, then, but a combination of factors underlie the Court’s decision to impose constitutional obligations upon a private party. It mattered that, historically, there have been a number of spaces traditionally dedicated to public speech: parks, squares and streets – whose public character remained unchanged despite the nature of ownership. It mattered that individuals had no feasible exit option – that is, no other place they could go to in order to exercise their free speech rights. And it mattered that free speech occupied a significant enough place in the Constitutional scheme so as to override the exclusionary rights that normally tend to go with private property.

The case of the privately-owned street in the privately-owned town presents a striking analogy when we start thinking seriously about net neutrality. First of all, in the digital age, the traditional sites of public discourse – parks, town squares, streets – have been replaced by their digital equivalents. The lonely orator standing on the soap-box in the street corner now tweets his opinions and instagrams his photographs. The street-pamphleteer of yesteryear now updates his Facebook status to reflect his political opinions. Specialty and general-interest blogs constitute a multiplicity of town-squares where a speaker makes his point, and his hearers gather in the comments section to discuss and debate the issue. While these examples may seem frivolous at first blush, the basic point is a serious one: the role of opinion formation and transmission that once served by open, publicly accessible physical infrastructure, held – in a manner of speaking – in public trust by the government, is now served in the digital world, under the control of private gatekeepers. To that extent, it is a public function, undertaken in public interest, as the Court held in Marsh v. Alabama.

The absence of an exit option is equally important. The internet has become not only a space of exchanging information, but it has become a primary – non-replaceable source – of the same. Like the citizens of Chickasaw lacked a feasible alternative space to exercise their public free speech rights (and we operate on the assumption that it would be unreasonably expensive and disruptive for them to move to a different town), there is now no feasible alternative space to the internet, as it exists today, where the main online spaces are owned by private parties, and access to those spaces is determined by gatekeepers – which are the ISPs.

The analogy is not perfect, of course, but there is a case to be made that in acting as the gatekeepers of the internet, privately-owned ISPs are in a position quite similar to the corporate owners of they public streets Company Town.

In the last post, we saw how it is possible – constitutionally – to impose public obligations upon private parties, although the Court has never made its jurisprudential foundation clear. Here, then, is a thought: public obligations ought to be imposed when the private entity is providing a public function and/or when the private entity is in effectively exclusive control of a public good. There is an argument that ISPs satisfy both conditions. Of course, we need to examine in detail how precisely the rights of free expression are implicated in the ISP context. That is the subject for the next post.

For more details visit https://cis-india.org/internet-governance/blog/-neutrality-free-speech-and-the-indian-constitution-part-2

Net Neutrality, Free Speech and the Indian Constitution - I

gautam — 2014-04-29T08:03:57Z

In this post, I will explore net neutrality in the context of Indian law and the Indian Constitution.

Let us take, for the purposes of this post, the following definition:

“The idea that all Internet traffic should be treated equally is known as network neutrality. In other words, no matter who uploads or downloads data, or what kind of data is involved, networks should treat all of those packets in the same manner.”

In other words, put simply, net neutrality in its broadest form requires the extant gatekeepers of the internet – such as, for instance, broadband companies – to accord a form of equal and non-discriminatory treatment to all those who want to access the internet. Examples of possible discrimination – as the quote above illustrates – include, for instance, blocking content or providing differential internet speed (perhaps on the basis of a tiered system of payment for access).

Net neutrality has its proponents and opponents, and I do not have space here to address that dispute. In its broadest and absolutist form, net neutrality is highly controversial (including arguments that existing status quo is not neutral in any genuine sense). I take as given, however, that some form of net neutrality is both an important and a desirable goal. In particular, intentional manipulation of information that is available to internet users – especially for political purposes – is, I assume, an undesirable outcome, as are anti-competitive practices, as well as price-discrimination for the most basic access to the internet (this brief article in the Times of India provides a decent, basic primer on the stakes involved).

An example of net neutrality in practice is the American Federal Communications Commission’s Open Internet Order of 2010, which was the subject of litigation in the recently concluded Verizon v. FCC. The Open Internet order imposed obligations of transparency, no blocking, and no unreasonable discrimination, upon internet service providers. The second and third requirements were vacated by a United States Court of Appeals. The rationale for the Court’s decision was that ISPs could not be equated, in law, to “common carriers”. A common carrier is an entity that offers to transport persons and/or goods in exchange for a fee (for example, shipping companies, or bus companies). A common carrier is licensed to be one, and often, one of the conditions for license is an obligation not to discriminate. That is, the common carrier cannot refuse to carry an individual who is willing and able to pay the requisite fees, in the absence of a compelling reason (for example, if the individual wishes the carrier to transport contraband). Proponents of net neutrality have long called for treating ISPs as common carriers, a proposition – as observed above – was rejected by the Court.

With this background, let us turn to India. In India, internet service providers are both state-owned (BSNL and MTNL), and privately-owned (Airtel, Spectranet, Reliance, Sify etc). Unlike many other countries, however, India has no network-neutrality laws. As this informative article observes:

“The Telecom Regulatory Authority of India (TRAI), in its guidelines for issuing licences for providing Unified Access Service, promotes the principle of non-discrimination but does not enforce it… the Information Technology Act does not provide regulatory provisions relating to Internet access, and does not expressly prohibit an ISP from controlling the Internet to suit their business interests.”

In the absence of either legislation or regulation, there are two options. One, of course, is to invoke the rule of common carriers as a common law rule in court, should an ISP violate the principles of net neutrality. In this post (and the next), however, I would like to analyze net neutrality within a constitutional framework – in particular, within the framework of the constitutional guarantee of freedom of speech and expression.

In order to do so, two questions become important, and I shall address them in turn. First, given that most of the ISPs are privately owned, how does the Constitution even come into the picture? Our fundamental rights are enforceable vertically, that is, between individuals and the State, and not horizontally – that is, between two individuals, or two private parties. Where the Constitution intends to depart from this principle (for instance, Article 15(2)), it specifically and expressly states so. As far as Article 19 and the fundamental freedoms are concerned, however, it is clear that they do not admit of horizontal application.

Yet what, precisely, are we to understand by the term “State”? Consider Article 12:

“In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

The key question is what, precisely, falls within the meaning of “other authorities”. The paradigmatic example – and this is something Ambedkar had in mind, as is evidenced by the Constituent Assembly Debates – is the statutory corporation – i.e., a company established under a statute. There are, however, more difficult cases, for instance, public-private partnerships of varying types. For the last fifty years, the Supreme Court has struggled with the issue of defining “other authorities” for the purposes of Part III of the Constitution, with the pendulum swinging wildly at times. In the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, a 2002 judgment by a Constitution bench, the Court settled upon the following definition:

“The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.”

Very obviously, this dooms the ISP argument. There is no way to argue that ISPs are under the pervasive financial, functional and administrative domination or control of the State. If we step back for a moment, though, the Pradeep Kumar Biswas test seems to be radically under-inclusive. Consider the following hypothetical: tomorrow, the government decides to privatize the nation’s water supply to private company X. Company X is the sole distributor of water in the country. On gaining control, it decides to cut off the water supply to all households populated by members of a certain religion. There seems something deeply wrong in the argument that there is no remedy under discrimination law against the conduct of the company.

The argument could take two forms. One could argue that there is a certain minimum baseline of State functions (ensuring reasonable access to public utilities, overall maintenance of communications, defence and so on). The baseline may vary depending on your personal political philosophy (education? Health? Infrastructure?), but within the baseline, as established, if a private entity performs a State function, it is assimilated to the State. One could also argue, however, that even if Part III isn’t directly applicable, certain functions are of a public nature, and attract public law obligations that are identical in content to fundamental rights obligations under Part III, although their source is not Part III.

To unpack this idea, consider Justice Mohan’s concurring opinion in Unnikrishnan v. State of Andhra Pradesh, a case that involved the constitutionality of high capitation fees charged by private educational institutions. One of the arguments raised against the educational institutions turned upon the applicability of Article 14’s guarantee of equality. The bench avoided the issue of whether Article 14 directly applied to private educational institutions by framing the issue as a question of the constitutionality of the legislation that regulated capitation fees. Justice Mohan, however, observed:

“What is the nature of functions discharged by these institutions? They discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution, is a public duty that requires… [it to] act fairly. In such a case, it will be subject to Article 14.”

In light of Pradeep Kumar Biswas, it is obviously difficult to hold the direct application of the Constitution to private entities. We can take Justice Mohan, however, to be making a slightly different point: performing what are quintessentially public duties attract certain obligations that circumscribe the otherwise free action of private entities. The nature of the obligation itself depends upon the nature of the public act. Education, it would seem, is an activity that is characterized by open and non-discriminatory access. Consequently, even private educational institutions are required to abide by the norms of fairness articulated by Article 14, even though they may not, as a matter of constitutional law, be held in violation of the Article 14 that is found in the constitutional text. Again, the content of the obligation is the same, but its source (the constitutional text, as opposed to norms of public law) is different.

We have therefore established that in certain cases, it is possible to subject private entities performing public functions to constitutional norms without bringing them under Article 12’s definition of the State, and without the need for an enacted statute, or a set of regulations. In the next post, we shall explore in greater detail what this means, and how it might be relevant to ISPs and net neutrality.

For more details visit https://cis-india.org/internet-governance/blog/net-neutrality-free-speech-and-the-indian-constitution-part-1

Net Neutrality Resources

praskrishna — 2017-04-22T09:11:21Z

Submissions by the Centre for Internet and Society to TRAI and DoT, 2015-2017.

Submission for TRAI Consultation on Regulatory Framework for Over-the-Top Services (June 29, 2015)
Submission to TRAI Consultation on Differential Pricing (January 7, 2016)
Counter Comments to TRAI on Differential Pricing (January 14, 2016)
TRAI Consultation on Differential Pricing for Data Services: Post-Open House Discussion Submission (January 25, 2016)
Submission to TRAI Consultation on Free Data (June 30, 2016)
Submission to TRAI Consultation on Proliferation of Broadband through Public WiFi Networks (August 28, 2016)
Submission to TRAI Consultation Note on Model for Nation-wide Interoperable and Scalable Public Wi-Fi Networks (December 12, 2016)
Submission to TRAI Consultation on Net Neutrality (April 18, 2017)

For more details visit https://cis-india.org/internet-governance/resources/net-neutrality-resources

Net neutrality debate rages

praskrishna — 2015-05-08T14:45:34Z

While Airtel has put out a statement on the pull out by Flipkart, other operators are playing a cautious game.

The article by Lalatendu Mishra and Pradeesh Chandran was published in the Hindu on April 15, 2015. Pranesh Prakash gave his inputs.

It’s a major victory for the proponents of net neutrality and a big setback for service provider Airtel. As the e-commerce firm Flipkart pulled out of talks on joining the controversial Airtel Zero platform, launched by Airtel last week, the debate on net neutrality has taken a fresh turn in the Indian context. In the wake of a virtual uproar in social media and following wide condemnation by votaries of net neutrality, Flipkart has to just give in. With Flipkart-induced new twist in the net neutrality game, the Internet Service Providers (ISPs), mostly telecom operators, are running for cover without knowing how to deal with the evolving situation that has the potential to adversely affect their business.

While Airtel has put out a statement on the pull out by Flipkart, other operators are playing a cautious game. And, they are unwilling to comment on a subject that has become an emotive issue. There are, however, voices which seek a middle path as solution to this issue.

“We are in favour of net neutrality. But this has to be defined in the Indian context. That is what TRAI is precisely doing. The debate on net neutrality is appropriate and important. All stakeholders should be able to decide what is net neutrality for India after due debate,” said Rajan Mathews, Director-General, Cellular Operators Association of India (COAI). “We must have a holistic approach to this issue. There should be rational debate, and we are committed for open and non-discriminatory Internet,” Mr Mathews added. A thought must go into protecting the interest of telecom operators as well, he felt.

While supporting net neutrality, analysts have voiced concern over its impact on the finances of telecos. “Net neutrality is a fair concept but it must take into account the concerns of telecom operators and ensure that their revenue and margins are not significantly impacted,” said Rajiv Gupta, Partner and Director, BCG. “Some kind of middle path needs to be achieved,” Mr Gupta said. Only a few countries so far have made net neutrality into a law. “We are yet to see whether our government’s moral support for net neutrality can translate into a law,” Mr Gupta added.

Surprisingly, Airtel which has come under flak on two occasions in last four months for alleged violation of net neutrality norms, too, has pledged its support for net neutrality! “Airtel fully supports the concept of net neutrality. There have been some misconceptions about our toll free data platform Airtel Zero. It is a not a tariff proposition but is an open marketing platform that allows any application or content provider to offer their service on a toll free basis to their customers who are on our network… The statement made by Flipkart regarding their decision not to offer toll-free data service to their customers is consistent with our stand that Airtel Zero is not a tariff proposition. It is merely an open platform for content providers to provide toll free-data services,” Airtel said. Without spelling out the future of Airtel Zero, it said “The platform remains open to all companies who want to offer these toll free data services to their customers on a completely non-discriminatory basis.” Over 150 start-ups have already expressed willingness to come on board Airtel Zero.

Pranesh Prakash, Policy Director, Centre for Internet and Society, said, “The need for net neutrality is very real and urgent. There are many practices that telecom companies are trying to engage in, such as blocking of WhatsApp to force customers to pay more money for it, which ought not to be allowed.” On Airtel Zero plan, he said “We should clearly separate out the issue of "zero rating" from that of "net neutrality". ``Only anti-competitive instances of zero-rating - for instance, Airtel offering it's own Hike service for free, or Airtel entering into an exclusive deal with Flipkart for zero-rating its app — are problems. Competitive zero-rating, with regulatory safeguards to ensure a fair and efficient marketplace, should be allowed, just as we allow free TV channels and allow toll-free numbers. Banning is akin to a brahmastra in a regulator's arsenal: it should not be used lightly,” Mr Prakash said.

No such plans: Snapdeal

Snapdeal said, “We have no such plans at this point, especially given the regulatory framework is unclear.’’

Zero rating is a practice among mobile network operators, where customers are not charged for a certain volume of data by specific applications or internet services.

An Amazon spokesperson said, “Amazon supports net neutrality - the fundamental openness of the Internet - which has been so beneficial to consumers and innovation.”

Earlier, Facebook and Reliance Communications had partnered for Internet.org. Reliance had announced in 2012 that it would offer free Facebook and WhatsApp for Rs 16 a month, without any additional data costs.

Amidst the debate on net neutrality, Telecom Minister Ravi Shankar Prasad said a six-member panel had been constituted by the telecom department to submit its recommendations regarding the same by early next month.

Start-ups for net neutrality:

Sumit Jain, Co-Founder & CEO, CommonFloor.com

“It’s well acknowledged that Internet has disrupted the world of business like no other technology has in last few decades. It has enabled start-ups with hardly any capital and clout to make a mark. So by rejecting net neutrality, we will be shutting the door on the entrepreneurial aspirations of millions and will leave telcos to play the gate-keeper to a valuable resource as the Internet and challenges the democratic behaviour that Internet in known for”.

Sameer Parwani, CEO & Founder, CouponDunia

“We will stand for net neutrality. India has been in the forefront of digital world. It is the Internet that has given the country hope and aspirations to the common man to be informed and entertained. Not being able to give equal access will just make the situation anti- competitive and it will have a negative effect on the upcoming businesses.”

Kashyap Vadapalli, Chief Marketing officer, Pepperfry

“Lack of net neutrality supports a monopolistic market which will adversely affect the growing start-up eco-system. While heavily funded businesses will be able to maintain their supremacy over consumers start-ups will stand to lose out heavily. We do not encourage discrimination of any sorts when it comes to consumer's access to information.”

Yogendra Vasupal, Founder of Stayzilla

“Airtel Zero seems like an innovative solution to bring Internet to every person. Whether this is on a firm footing or a slippery slope will be decided by the actual implementation. The current way of individual companies buying Internet for their consumers is a slippery slope. The right way to do it would be through a central consortium formed from the e-commerce companies and who has the interests of both the start-ups in this sector and the end-users in mind. After all, Internet is all about freedom of choice. Keeping in mind that currently it would be free only if you use a particular company makes it free at the cost of the freedom of choice it offers. This is everyone's loss.”

Ritesh Agarwal, CEO, OYO Rooms

“Net neutrality is absolutely essential for a free and competitive market especially now since there is a start-up boom in the country particularly in the online sector. Most importantly, Internet was created to break boundaries and as concerned industry players, we should maintain that. We support net neutrality and will do all needed to build this further.”

For more details visit https://cis-india.org/internet-governance/news/the-hindu-lalatendu-mishra-pradeesh-chandran-april-15-2015-net-neutrality-debate-rages

Net Neutrality debate in India: Here are all the arguments you need to know

praskrishna — 2015-05-09T08:01:20Z

While online activists and even big Internet companies have come out to support Net Neutrality, the debate isn’t really as simple when it comes to India.

The article by Shruti Dhapola was published in the Indian Express on April 23, 2015. Pranesh Prakash gave his inputs.

If you are one of India’s active netizens, it is unlikely that the words Net Neutrality have escaped your daily dose of social media updates and news. The debate, which gained pace post AIB’s video on the topic and news of the Airtel Zero programme, has seen some of the biggest names in the Internet and media industries give their take on the issue. More importantly, last month India’s telecom regulator TRAI came out with a consultation paper on the growth of Over-the-top (OTT) players like WhatsApp or Skype and is looking at exploring a regulatory framework for these apps.

In essence, Net Neutrality implies that all Internet data pack should be treated equally, that there should be no fast or slow lanes for Internet, or that users should pay differently for accessing some websites. While online activists and even big Internet companies in India like ClearTrip, Flipkart, have come out to support Net Neutrality, the debate isn’t really as simple when it comes to India.

For starters, in a country like India, Net Neutrality has vast implications, especially for start-ups many of whom are dependent on the medium for the success of their business. A neutral Internet means a level playing field.

Rishabh Gupta, COO, Housing.com, says, “Net neutrality has played a significant role in keeping the internet a level-playing field, simplifying customer outreach for businesses across industries. Further, the platform has encouraged new age entrepreneurs to bring in innovative business models making technology as an integral part of business; be it banking, mobile payments, e-commerce, real estate, etc.”

Manav Sethi, Group CMO, Askme adds that “any violation of Internet Neutrality can have a serious bearing on effective and fair competition in the market place”.

“We feel it is the government’s responsibility to ensure a level playing field for home grown entrepreneurs and at the same time protect the interests of netizens,” says Sethi.

Where licensing is concerned, Internet activists have also pointed out that this just won’t work. Pranesh Prakash, Policy Director at Centre for Internet and Society in India, says that India just can’t go back to the licensing days.

“OTT players aren’t just your Facebook or Viber, it’s the entire Internet. For instance with WebRTC protocol coming in you can do peer-to-peer chat, video calls on Web browsers. How would TRAI propose to regulate this, there’s no central service. It might not be popular, but it is being used by some already.”

He says the telecos’ argument about loss revenue due to rise of OTT’s isn’t a legitimate one but adds that instead of going for more regulation TRAI can look to reduce some differential regulations for telecos to make things easier for them.

There’s also a growing belief that TRAI hasn’t acted fairly when it comes to its paper on OTTs. The Internet and Mobile Association of India (IAMAI) has slammed TRAI saying OTTs are already regulated and governed by the IT Act.

A statement issued by IAMAI President Subho Ray said: “It looks like TRAI, in its consultation paper, has copy-pasted from submissions of telcos. India has a robust and at times, overbearing IT Act.” Expressing support for Net Neutrality, his statement said, “the paper makes an assumption that Internet doesn’t come under any regulations, which is incorrect. All Internet companies are regulated by IT Act”.

IAMAI includes firms like Google, Facebook, Snapdeal, Ola, MakeMyTrip and Saavn as its members.

But TRAI has also come out to defend its the whole debate. TRAI chief Rahul Khullar had earlier told Indian Express, “There are passionate voices on both sides of the debate. And if that was not enough, there’s a corporate war going on between a media house and a telecom operator which is confounding already difficult matters.”

While TRAI’s paper has received criticism, it should be noted that the paper does devote a significant proportion to discussing Net Neutrality and the negative impact it could have if India overlooks the principle.

The paper says, “A policy decision to outright depart from “NN” (Net Neutrality) raises various antitrust and public interest issues. There are concerns that TSPs will discriminate against certain types of content and political opinions. Such practices may hurt consumers and diminish innovation in complementary sectors such as computer applications and content dissemination. Discriminatory pricing proposals, if implemented, could raise a variety of significant anti-competitive concerns.”

Discriminatory pricing proposals are what activists fear could take place if India abandons its stand on Net Neutrality, and users will be the one to suffer.

But there is counter-argument to the whole Net Neutrality debate. It states that in a country like India many still don’t have access to data or mobile Internet because it is expensive and that zero-ratings could be a possible solution.

Zero ratings ensure that a TSP or ISP could declare a service or an app as free, and usually these are services that the company has tied-up with. The Facebook-Reliance initiative under the Internet.org initiative is a Zero rating system, where the idea was to provide certain services like Facebook, ClearTrip, NDTV, etc for free for users in certain part of the country. A benevolent scheme no doubt, but a violation of Net Neutrality all the same. Thanks to the furor over Net Neutrality, ClearTrip and others have started pulling out of Internet.org.

Facebook CEO Mark Zuckerberg has defended Internet.org saying while network operators shouldn’t discriminate between services, “for people who are not on the internet though, having some connectivity and some ability to share is always much better than having no ability to connect and share at all. That’s why programs like Internet.org are important and can co-exist with net neutrality regulations.”

Zuckerberg isn’t the only one making an argument for Zero-rating apps. In a paper for Brookings Institute, Darrell M. West argues that zero-rating apps can actually help improve data access to those who can’t afford it.

As an example, the paper points out how “in Paraguay, an Internet.org project has generated an increase in “the number of people using the internet by 50% over the course of the partnership and [an] increase [in the] daily data usage by more than 50%.” In addition to this the paper says that, African nations have reported substantial upticks in Internet usage following introduction of Facebook Zero.

Interestingly, some countries like Chile have banned Zero ratings because they violate Net Neutrality. Pranesh Prakash says that the argument given in favour of ‘zero ratings’ is a bogus one.

Prakash says, “Exclusive deals like Flipkart-Airtel, or Reliance or Facebook or even free Wikipedia, end-up becoming anti-competitive. Discriminatory deals should not be allowed or those that become anti-competitive under Section 3 of Competition act should not be allowed.”

“If zero-rating can exist in an environment of competition, only then it’s a good thing,” he adds.

But government stepping-in isn’t entirely unexpected. Sajai Singh, Partner at J Sagar Associates Law Firm, points out that the government has now woken up to a new disruptive technology. He gives an example of cable television saying that when it first came up in India, the government had no laws to deal with cable.

“This is another example of the government playing catch up and it happens all across the world. It’ll happen more often with newer disruptive technologies like robotics, artificial intelligence. For instance, when the driverless car comes the government will have to bring in some legislation,” he adds.

For now, TRAI has received over 7-8 lakh comments on the discussion paper that they had first put up on their site on 27 March.

It is fair to argue that Net Neutrality has helped preserve the Internet’s free and open character in India and that a deviation from the same will hurt users the most. Then there’s the very real picture that India needs to provide Internet access to more of its citizens especially those who can’t afford it. For TRAI, treading a fine line between the two will prove to be a real challenge.

For more details visit https://cis-india.org/internet-governance/news/indian-express-april-23-2015-net-neutrality-debate-in-india

Net Neutrality and Privacy

divij — 2014-03-20T05:01:58Z

The highly contentious and polarising debate on net-neutrality will have a large impact on shaping the future of the internet and ultimately on the users of the internet. One important issue which needs to be prioritized while debating the necessity or desirability of a legal regime which advocates net-neutrality is its implication on privacy.

The principle behind net-neutrality, simply put, is that the data being transmitted to and from the user should be treated equally, i.e. that data carriage, at the level of ISP’s, should be ‘dumb’. This would mean that internet service providers cannot discriminate between different data based on the content of the data. Without the principle of net-neutrality being followed, ISP’s would become the ‘internet gatekeepers’, choosing what data gets to reach the end-user and how. There are many arguments for favouring or disfavouring net-neutrality, however, advocates of privacy on the internet should be wary of the possible implications of endorsing a non-neutral internet and allowing greater network management by ISP’s. So, how does the net-neutrality debate affect privacy?

It all depends upon what kind of network management ISP’s employ. Deep Packet Inspection (DPI) is a method of data inspection which allows the network manager to scrutinize data at the application level, and in real time. As compared to shallow packet inspection, which identifies based on headers like IP addresses or protocols like TCP and UDP, which are analogous to envelopes on a letter, DPI would be akin to having access to the contents. DPI-based network management can identify the programs, software and applications being used, and what they are being used for in real time. Unlike any ordinary online service provider ISP’s are in the unique position of having comprehensive access to all of their customers’ data. Allowing DPI-based network management for prioritizing certain data or applications, an almost certain outcome if net-neutrality is weakened, would mean that ISP’s would be able to intercept and scrutinize any and all user data, which would reveal substantial information about the user, and would be a serious blow to privacy. While DPI can have several benefits in its application (such as finding and fighting malware or viruses), but where it is used, must be for a targeted and legitimate aim. Even where DPI is not used, if network discrimination is allowed, based on a user-to-user basis it would require inspecting the IP addresses of the user, which can also be a problematic intrusion of privacy, especially since the ISP also has other data like addresses and names of users which it can use to identify them.

Privacy may not necessarily be affected through non-neutral internet systems, but in all probability, with the growth of systems like the DPI and commercial incentives for “gatekeeper ISP’s” who are in a position to profit greatly from an ability to scrutinize and discriminate between data, it is likely that it will. In India, though government ISP’s like MTNL and BSNL deny using DPI,[1] it’s likely that it is still applied by others, and that the government is aware of this (http://www.theinquirer.net/inquirer/news/2161541/indian-isps-block-104-websites). Even as the TRAI advocates and supports net-neutrality, Indian ISP’s seem to be heading the other way.[2] Before the trend becomes the norm, it’s high time for a comprehensive discussion about how policies should be framed for keeping the internet a more neutral, and more private, space.

References

Apar Gupta, TRAI(ing) to keep it neutral, http://www.iltb.net/2010/09/traiing-keep-it-neutral/
For a lay discussion on Deep Packet Inspection and net-neutrality, visit http://arstechnica.com/gadgets/2007/07/deep-packet-inspection-meets-net-neutrality/

For more details visit https://cis-india.org/internet-governance/blog/net-neutrality-and-privacy