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Reply to RTI filed with BSNL regarding Network Neutrality and Throttling

tarun — 2014-12-22T14:45:03Z

As part of its work on Network Neutrality, the Centre for Internet and Society through Tarun Krishnakumar had filed a Right To Information (RTI) application with Bharat Sanchar Nigam Ltd. (BSNL), a state-owned teleco holding a market share of 65 per cent in the Indian land line and broadband markets — regarding its position on and adherence to Network Neutrality principles.

The application — targeted at easing the information asymmetry between internet service providers (ISPs) and consumers — elicited responses that provide interesting insights into the functioning of ISPs in India.

The application queried BSNL about its:

Adherence to net neutrality / non-discrimination principles
Throttling on the basis of content
Throttling on the basis of protocol
Limiting traffic / speeds for pornographic websites
Limiting traffic / speeds for P2P / torrent connection

In its reply, BSNL denied all forms of throttling on the basis of content and reaffirmed that it is bound by the terms of its ISP license granted by the Department of Telecommunications. The application and response are below:

Application:

Request for Information under the Right to Information Act, 2005

To,

Sh. Suresh Kumar
Addl.GM (MIS) & CPIO ,BSNL Co.
R. No. -29, IR Hall
Eastern Court, Janpath
New Delhi – 110001

Date of application: 08-10-2014

Subject: Network Neutrality / Throttling / Data discrimination policies of BSNL

Please provide information as to the policies of BSNL / decisions taken in respect of the following questions. Please supply where possible a copy of the relevant documents, minutes of meeting, position papers etc.

Does BSNL support the principle of net neutrality and non-discrimination of data?
Does BSNL regulate internet traffic flows depending on the type of content being accessed by the user on its broadband connections?
Does BSNL regulate internet traffic flows depending on the type of protocol being used by the user on its broadband connections?
Please provide details of the various types of content/protocols for which BSNL regulates traffic and the nature of such regulations, restrictions as the case may be.
Please provide a list of traffic for which BSNL engages in limiting internet speed or throttling.
Does BSNL limit internet traffic or upload/download speeds for pornographic websites and content?
Does BSNL limit internet traffic or upload/download speeds for Peer-to-peer or torrent connections?

Please provide copies of all documents that pertain to BSNL’s policies and decisions in this regard.

It is certified that I am a citizen of India and that I do not fall within the BPL category. I am enclosing Rupees thirty (Rs. 30) towards the application fee and photocopying costs under the RTI Act for the information and documents requested. Kindly inform me at the address stated below if any further fees are required to be paid.

Applicant:

Tarun Krishnakumar
Centre for Internet and Society
No.194, 2nd C Cross Road, Domlur II Stage,
Bangalore - 560071

RESPONSE FROM BSNL:

To,

Sh. Tarun Krishnakumar
Centre for Internet and Society
No. 194, 2^nd C Cross Road, Domulur II stage,
Bengaluru – 560071

Subject: Supply of Information under RTI ACT – 2005

Case of Shri. Tarun Krishnakumar – reg.

Ref: - 1. No. BSNL/BBNW/RTI Act/Vol II/2012-13/52 dtd 28.10.2014

2. No. 23-744/14-RTI dtd 21.10.2014

With reference to the above subject, for the point wise information furnished as below:

BSNL is following the guidelines as per the ISP License Agreement of DOT.
NO, BSNL is NOT regulating the Internet traffic flow based on content.
NO, BSNL is not regulating the Internet traffic flow based on the type of protocol.
Not Applicable
Not Applicable
NO
NO
The documents relating to above are available on DOT’s website http://dot.gov.in

(Sd/-)

DE Admin and APIO
O/o General Manager
BBNW, BSNL,
5^th floor, BG (E), TE Building,
Lazar Road, Fraser Town,
Bengaluru – 560005
Tel No. 080 - 25808878

Copy to:

The Addl. GM (A) & CPIP O/o CGM, BBNW, New Delhi for information pl.

The scanned version of the reply is available here.

For more details visit https://cis-india.org/internet-governance/blog/reply-to-rti-filed-with-bsnl-regarding-network-neutrality-and-throttling

Reply to RTI Applications filed with respect to Foreign Contractors and Vendors of IT and Telecommunication Enterprises

Lovisha Aggarwal — 2015-02-25T14:13:52Z

An RTI application was filed by the Sh. Matthew Thomas on August 06, 2014 enquiring about the details of the foreign contractors and vendors of certain Information Technology and Telecommunication enterprises. Mr. Mathews in his application asked some specific questions.

Information sought in the RTI Application

The specific questions asked are as follows:

1. Names, addresses in India and abroad of all their contractors and vendors who are foreign firms, even if they have registered offices in India.

2. Permission to inspect files pertaining to subject matter.

3. Details of the orders placed in each of the past 3 or more years on each of their contractors and details of the orders placed in each of the past 3 or more years on each of their contractors where the amount is for Rs. 50 crore or more.

Enterprises to which the RTI Application was addressed

The application was sent to the following enterprises:

1. Department of Electronics & Information Technology, Ministry of Communications and Information Technology, Government of India

2. Department of Telecommunications, Ministry of Communications and Information Technology, Government of India

3. Information Technology Branch, Department of Food, Supplies & Consumer Affairs, Government of NCT of Delhi

4. Centre for Development of Telematics (C-DOT) - an Indian Government owned telecommunications technology development centre which designs and develops digital exchanges and intelligent computer software applications.

5. Centre for Development of Advanced Computing (C-DAC) - a research and development organization under the Department of Electronics and Information Technology, Government of India.

6. Bharat Sanchar Nigam Ltd. (BSNL) - an Indian state-owned telecommunications company. It is India's oldest and largest communication service provider.

Reply to the RTI Application

The reply to the information sought in the RTI application by these enterprises is as follows:

1. Department of Electronics & Information Technology, Ministry of Communications and Information Technology, Government of India

The RTI application was addressed to the Deputy Director of the department who forwarded the application to the Joint Director directing him to provide the requisite information directly to the applicant or transfer the application to the concerned Central Public Information Officers (CPIOs) if the subject matter did not pertain to his division. In response, the Joint Director of the Department of Electronics & Information Technology said that the information on the subject matter was NIL as far as Engineering/BM section, Fire, Security and Protocol Sections of Department of Electronics and Information Technology is concerned.

2. Department of Telecommunications, Ministry of Communications and Information Technology, Government of India

The RTI application was forwarded by the Deputy Secretary & Nodal Officer (RTI) of the Department of Telecommunications to the following divisions for providing the requisite information directly to the applicant or transferring the application to the concerned Central Public Information Officers (CPIOs) if the subject matter did not pertain to their division and their replies are as under:-

a. Investment Promotion Cell: The Director (IP Cell) & CPIO said that no information was available as the subject matter of the application did not pertain to IP Cell.

b. Access Services-I Division: Director (AS-I) & CPIO asked to treat the information as NIL.

c. Licensing Finance - II Branch: Director (IF-II) & CPIO asked to treat the information as NIL as the matter did not pertain to that branch.

d. Licensing Finance - III Branch: Director (IF-III) & CPIO asked to treat the information as NIL as the matter did not pertain to that branch.

e. Deputy Wireless Adviser: CPIO & Deputy Wireless Adviser to the Govt of India of WPC Wing, SACFA Sectt. said that the information sought was not available with that PlO.

3. Information Technology Branch, Department of Food, Supplies & Consumer Affairs, Government of NCT of Delhi

The Public Information Officer (HQ) of the Information Technology Branch of Department of Food, Supplies & Consumer Affairs forwarded the RTI application to Assistant Commissioner (Policy), Food and Supplies Department and Public Information Officer (HQ), Food and Supplies Department to provide the Para wise information directly to the applicant in accordance with section 5(4) of RTI Act as the record related to the information sought was said to be available with their office. Section 5(4) of RTI Act reads, "The Central Public Information Officer or State Public Information Officer, as the case may be, may seek the assistance of any other officer as he or she considers it necessary for the proper discharge of his or her duties." However, a reply hasn't been received from the Assistant Commissioner (Policy), Food and Supplies Department and Public Information Officer (HQ), Food and Supplies Department yet.

4. The Centre for Development of Telematics

Referring the information sought in the RTI application as vague, the Centre for Development of Telematics asked the applicant to clearly define the information requirements and the period for which it required. The Centre claimed that the information sought at present would lead to handing over of a large amount of data which would require application of significant resources of public authority, since the number of the vendors and contractors could be more than seven hundred in numbers of different categories, namely, component vendors, equipment suppliers, administrative service contractors, etc. The reply was in consistency with section 7(9) of the Right to Information Act which reads, "An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question."

5. Centre for Development of Advanced Computing

The Centre for Development of Advanced Computing disregarded the information sought by the applicant and observed that theinformation sought was vague in nature, not specific and open ended, therefore, could not be termed as Information under the RTI Act without providing any further explanation in this regard.

6. Bharat Sanchar Nigam Ltd. (BSNL), Government of India Enterprise

The RTI application was referred to the MM cell of BSNL by the AdditionaI General Manager (MIS) & CPIO of BSNL (RTI Cell) who replied that no information with respect to the names, addresses in India and abroad of all their contractors and vendors who are foreign firms, even if they have registered offices in India was available. As far as the third question regarding details of the orders placed in each of the past 3 or more years on each of their contractors and details of the orders placed in each of the past 3 or more years on each of their contractors where the amount was for Rs. 50 crore or more was concerned, the AGM of MM cell said that the information could be provided for specific contractor.

For more details visit https://cis-india.org/internet-governance/blog/reply-to-rti-applications-with-respect-to-foreign-contractors-and-vendors-of-it-and-telecommunication-enterprises

Reply to RTI Application under RTI Act of 2005 from Vanya Rakesh

vanya — 2016-01-13T02:40:57Z

Unique Identification Authority of India replied to the RTI application filed by Vanya Rakesh.

Madam,

Please refer to your RTI application dated 3.12.2015 received in the Division on 10.12.2015 on the subject mentioned above requesting to provide the information in electronic form via the email address vanya@cis-india.org, copies of the artwork in print media released by UIDAI to create awareness about use of Aadhaar not being mandatory.
I am directed to furnish herewith in electronic form, copy of the artwork in print media released / published in the epapers edition of the Times of India and Dainik Jagran in their respective editions of dated 29.8.2015 in a soft copy, about obtaining of Aadhaar not being mandatory for a citizen, as desired.
In case, you want to go for an appeal in connection with the information provided, you may appeal to the Appellate Authority indicated below within thirty days from the date of receipt of this letter.
Shri Harish Lal Verma,
Deputy Director (Media),
Unique Identification Authority of India
3nd Floor, Tower – II, Jeevan Bharati Building,
New Delhi – 110001.

Yours faithfully,

(T Gou Khangin)
Section Officer & CPIO Media Division

Copy for information to: Deputy Director (Establishment) & Nodal CPIO

Below scanned copies:

RTI Reply

Coverage in Dainik Jagran

Download the coverage in the Times of India here. Read the earlier blog entry here.

For more details visit https://cis-india.org/internet-governance/blog/reply-to-rti-application-under-rti-act-of-2005-from-vanya-rakesh

Reply to RTI Application on the List of Nodal Officers Designated Under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009

praskrishna — 2013-03-21T06:30:57Z

The Centre for Internet and Society had sent an RTI to the Department of Electronics & Information Technology on December 4, 2012. The Department responded to the same through this notification on January 7, 2013. The letter sent and the notification received are reproduced below.

Shri Anil Kaushik Scientist E Office of PIO (RTI) Electronics Niketan
Department of Information Technology (DIT) Ministry of Communications and Information Technology 6, CGO Complex, New Delhi

Dear Sir,

Subject: Information on nodal officers appointed requested under the Right to Information Act, 2005.

1. Füll Name of the Applicant: Centre for Internet and Society

2. Address of the Applicant:

E-mail Address:

Mailing Address:
Centre for Internet and Society
194, 2-C Cross,
Domlur Stage II,
Bangalore-560071

3. Details of the information required:

The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 ("Rules") provides for the désignation of nodal officers under Rule 4. Rule 4 states that every Organization shall designate one of its officers as the Nodal Officer for the purpose of implementing the Rules. Rule 4 also provides that every Organization shall inform the Department of Information Technology of the désignation of such a Nodal Officer. In this regard, we request information on the following queries under Section 6(1) of the Right to Information Act, 2005:

Does the Department of Electronics and Information Technology maintain a list of all Nodal Officers designated under Rule 4 of the Rules?
If so, please provide me a copy of any list containing information about the Nodal Officers designated under Rule 4 of the Rules.
Years to which the above requests pertain:'

2009-2012

5. Designation and Address of the PIO from whom the information is required:
Shri Anil Kaushik Scientist E Office of PIO (RTI) Electronics Niketan
Department of Information Technology (DIT) Ministry of Communications and Information Technology
6, CGO Complex, New Delhi

To the best of my belief, the details sought for fall within your authority. Further, as provided under section 6(3) of the Right to Information Act ("RTI Act"), in case this application does not fall within your authority, I request you to transfer the same in the designated time (5 days) to the concerned authority and inform me of the same immediately.

To the best of my knowledge the information sought does not fall within the restrictions contained in section 8 and 9 of the RTI Act, and any provision protecting such information in any other law for the time being in force is inapplicable due to section 22 of the RTI Act.

Please provide me this information in electronic form, via the e-mail address provided above. This is to certify that I, Smitha Krishna Prasad, am a citizen of India.

(Smitha Krishna Prasad

A fee of Rs. 10/־ (Rupees Ten Only) has been made out in the form of a demand draft drawn in favour of "Pay and Accounts Officer, Department of Information Technology" payable at New Delhi.

Date: Tuesday December 4, 2012
Place: Bengaluru, Karnataka

Below is the reply received from the Department of Electronics & Information Technology:

No. 14(142)/2012-ESD
M/o Communiciations & Information Technololgy Department of Electronics & Information Technology Electronics Niketan,6, CGO Complex
New Delhi-110003

Dated: 7.1.2003

Subject: RTI application received from Shri Smitha Krishna Prasad

This is with reference to your RTI application requesting for the following information:

The Information Technology (Procédure and Safeguards for blocking for access of information by public) Rules, 2009 ("Rules") provides for the désignation of nodal officers under Rule 4. Rule 4 states that every organisation shall designate one of its officers as the Nodal Officer for the purpose of implementing the Rules. Rule 4 also provides that every organisation shall inform the Department of Information Technology of the désignation of such a Nodal Officer. In this regard, we request information on the following queries under Section 6(1) of the Right to Information Act,2005.

Does the Department of Electronics and Information Technology maintain a list of all Nodal Officers designated under rule 4 of the Rules?
If so, please provide me a copy of any list containing information about the Nodal Officers designated under Rule 4 of the rules.

The information as received from the custodian of the information is placed below:

Department of Electronics and Information Technology maintains a list of Nodal Officers designated under rule 4 of the Information Technology (Procédure and Safeguards for blocking for access of information by public) Rules, 2009.
A copy of list of Nodal Officer is enclosed at Annexure.

(A.K. Kaushik)
Additional Director & CPIO
(E-Security & Cyber Laws)

Centre for Internet & Society
194, 2-C Cross, Domlur Stage II
Bangalore - 560071

Annexure

List of Nodal Officers

Director, Dept. of Agriculture, Krishi Bhawan, New Delhi
Adviser, Dept. of Biotechnology, Block-2, Room - 707, CGO Complex, New Delhi- 110003
Dy. Director General, Dept. of Chemicals & Petrochemicals, Shastri Bhawan, N. Delhi-1
Jt. Secretary (Admn.), Room No. 321-A, Shastri Bhawan , N. Delhi-1
Scientist Gr. IV(6), Council of Scientific & Industrial Research, Anusandhan Bhavan, 2 Rafi Marg, New Delhi-110 001
Director (Coord), Dept. of Defence, R, No. 94, South Block, New Delhi - 110001
Director (B&C), Dept. of Defence Production, R. No. 146, B-Wing, Sena Bhawan, New Delhi
Director, DESIDOC, 405, Cresent Apartment, Pocket 2, Sector 18A, Dwarka, New Delhi - 110075
Deputy Secretary (res - I), Dept. of Ex-servicemen Welfare, Room No. 237, B-Wing, Sena Bhawan, New Delhi-11
Scientist E, Room No. 3, Administrative Block, DSIR, Technology Bhavan, New Mehrauli Road, New Delhi-110 016
Director, Ministry of Earth Sciences, Block-12, CGO Complex, New Delhi - 110003
Dy. Secy (Budget Monitoring), Dept. of Economic Affairs, Room No. 238-B, North Block, New Delhi-110001
Deputy. Secretary, Room 1222, Paryavaran Bhawan, CGO Complex, Lodi Road, New Delhi-3
Jt. Secy. (XP), Ministry of External Affairs, R.No. 152, Shastri Bhawan, New Delhi
Deputy Secretary, Dept. of Financial Services, Ministry of Finance, 3rd Floor, Jeevandeep, Parliament Street, N Delhi-1
Under Secretary, Min. of Food Processing Industry, Panchsheel Bhawan, Room No 117, August Kranti Marg, New Delhi - 110049
DDG (Stats), Dept. of Health & Family Welfare, 518-A, Nirman Bhawan, New Delhi
Jt. Director, Ministry of Home Affairs, 35, Sardar Patel Marg, New Delhi
Sr. Tech. Director,NIC, Room No. 108, A-Wing, Shashtri Bhawan, N. Delhi-1
JS & Legislative Counsel, Legislative Department, Min. of Law & Justice, Room No. 430A, A-Wing, Shastri Bhawan, N Delhi-11001
Deputy Secretary, Department of Legal Affairs, Min. of Law & Justice, Room No. 433A, A-Wing, Shashtri Bhawan, N Delhi-11001
Joint Secretary, Min. of Mines, Shastri Bhawan, New Delhi
Director (R&A), Min. of Petroleum & Natural Gas, Room No. 203, B-Wing, Shastri Bhawan, New Delhi-110 001
DDG (Technology) Dept. of Posts, Room No. 524, Dak Bhawan, Parliament St., New Delhi - 110016
Joint Secretary, Min. of Power, Room No. 202, Shram Shakti Bhawan, Rafi Marg, New Delhi-110001
Dy. Secretary, Dept. of Public Enterprises, Room No. 410, Block-14, Public Enterprises Bhavan, CGO Complex, N Delhi-110003
Executive Director (C&IS) Railway Board, Min. of Railways, Rail Bhavan, Raisina Road, New Delhi - 110 001
Director (Narcotics Control), Dept. of Revenue, Min. of Finance, Room No 48-A, North Block, N Delhi
Jt. Secy (T&A), Min. of Road Transport & Highways, Transport Bhawan, 1 Parliament Street, New Delhi
Deputy Secretary, Ministry of Shipping, Room 428, Transport Bhavan, Sansad Marg, N Delhi-110001
Deputy Director, INSES, Indian Space Research Organisation, Antariksh Bhavan, New BEL Road, Bangalore-560231
Dy. Secy, Ministry of Steel, Udyog Bhavan, New Delhi
Additional Surveyor General, International Boundary Directorate (SGO), Room 37-B, L-II Block, Brassey Avenue, Church Road, N Delhi
Asstt. Director (PG-I), Department of Telecom, Sanchar Bhawan, 20 Ashoka Road, N Delhi-1
Director, Ministry of Textile, Room No. 231, 2nd Floor, Udyog Bhawan, New Delhi
Director (Admn), Min. of Urban Development,Room No. 235, "C" Wing, Nirman Bhawan, New Delhi
Director (IT), Ministry of Water resources, 627, Shram Shakti Bhawan, Rafi Marg, New Delhi-110001
SD(IT)-2, A&N Admin., Govt. Polytechnic Campus, Junglighat (P.O.), Pahargaon, Port Blair-744 103
Special Officer (Portal), Room No. 208, A-Block, IT&C Department, A.P. Secretariat, Hyderabad-500022
Managing Director, Bihar State Electronics Devp. Corp., Beltron Bhawan, Shastri Nagar, Patna-3
Director, Information Technology, Dept. of IT, 5th Floor, Addl. Deluxe Building, Sector-9, Chandigarh
Chief Executive Officer, CHIPS office, IT & BioTech Department, Mantralaya, D.K.S. Bhawan, Raipur-492001
Director (IT) Room No. 207-208, Secretariat, Amli, Silvassa-396 230
Principal Home Secretary, Dèlhi Secretariat, IP Estate, New Delhi-11002
DCP, Economic Offences Wing, Crime Branch, Delhi Police
Secretary (IT), Dept. of IT, Secretariat Complex, Porvorim, Goa-403521
Principal Secretary Science & Tech. Dept.. Block - 7, 5th Floor, New Sachivalaya, Gandhinagar- 382 010
Spl. Secretary, Secretariat for IT, 9th Floor, Haryana Civil Secretariat, Chandigarh
Director. Dept. of IT, STPI Building, Block-24, SDA Complex, Kasumpti, Shimla- 71009
Regional Dy. Director, Revenue & Land Reforms Department, Project Bhawan, Dhurva, Ranchi-834002
Project Officer. HRMS Project, Room No. 145-A, M.S. Building, Gate No. 2, Dr. В R Ambedkar Veedhi, Bangalore 560001
Principal Secretary, Information Technology Department, Central Secretariat, Trivandrum - 695 001
Director (Information Technology) Department of Information Technology, Administration of the UT of Lakshadweep, Kavaratti - 682 555
OSD, Department of Information Technology, Room No. 132, Vallabh Bhavan, Bhopal - 462 004
Jt. Commissioner of Police (Crime), Govt. of Maharashtra, Mumbai
Principal Informatics Officer, Dept. of Information & Comm. Technology, Govt. of Mizoram, Secrétariat Annex-l, Aizawl, Mizoram
Secretary IT&C, Nagaland Civil Secrétariat, Kohima - 797004
DGM. Orissa Computer Application Centre, OCAC Building, Plot N/1-7D, Acharya Nagar, PO-RRL. Bhubaneswar-751013
Director (IT), Directorate of IT, No. 505 Kamraj Salai, PRD Complex, Saram, Puducherry - 605 013
Director, Department of IT, SCO 193-95, Sector 34-A, Chandigarh
Additional Director, Dept. of IT & Communication, First Floor, Yojana Bhawan, Tilak Marg, Jaipur
Principal Secretary, Information Technology Department, Secrétariat, Chennai
Additional Director, Govt of Tripura, Directorate of IT, Indranagar, ITI Road, Agartala - 799 006
Special Secretary, IT & Electronics Dept., Bapu Bhawan, II Floor, No. 209, U.P. Admn. Lucknow
Uttra Portal Subject Specialist, ITDA, 93, Phase-II, Vasant Vihar, Dehradun
Executive Director (Technical), WBEIDC Ltd., Webel Bhawan, Block EP & GP, Salt lake, Sector-V, Kolkata-700091

For more details visit https://cis-india.org/internet-governance/resources/arreply-to-rti-application-on-nodal-officers-from-deit

Reply to RTI Application on Blocking of website and Rule 419A of Indian Telegraph Rules, 1951

praskrishna — 2013-03-21T07:58:12Z

The Department of Telecommunications sent its reply to an RTI application from the Centre for Internet and Society. The application was sent on December 27, 2012 with reference to blocking of websites and Rule 419A of the Indian Telegraph Rules, 1951.

To
Shri Subodh Saxena
Central Public Information Officer (RTI)
Director (DS-II), Room No 1006, Sanchar Bhawan
Department of Télécommunications (DoT)
Ministry of Communications and Information Technology
20, Ashoka Road, New Delhi — 110001

Dear Sir,
Subject: Information on Website Blocking Requested under the Right to Information Act, 2005

1. Full Name of the Applicant: Centre for Internet & Society

2. Address of the Applicant

Mailing Address: Centre for Internet and Society
194, 2־C Cross,
Domlur Stage II,
Bangalore 560071

3. Details of the information required

It has come to our attention that Airtel Broadband Services ("Airtel") and Mahanagar Téléphoné Nigam Limited ("MTNL") have recently blocked access to a number of domain sites for all their users across the country. Airtel has blocked Fabulous Domains (http://www.fabulous.com/), BuyDomains (http://www.buvdomains.com/) and Sedo (http://sedo.co.uk/uk/home/welcome/). MTNL has blocked Sedo (http://sedo.co.uk/uk/home/welcQme/). Subscribers trying to access this website receive a message noting "This website/URL has been blocked until further notice either pursuant to Court orders or on the Directions issued by the Department of Télécommunications". In this regard, we request information on the following queries under Section 6(1) of the Right to Information Act, 2005:

Does the Department have powers to require an Internet Service Provider to block a website? If so, please provide a citation of the statute under which power is granted to the Department, as well as the safeguards prescribed to be in accordance with Article 19(1)(a) of the Constitution of India.
Did the Department order Airtel or MTNL to block any or all of the above mentioned websites? If so, please provide a copy of such order or orders. If not, what action, if at all, has been taken by the Department against Airtel and MTNL for blocking of websites?
Has the Department ever ordered the blocking of any website? If so, please provide a list of addresses of all the websites that have been ordered to be blocked.
Please provide use the present composition of the Committee constituted under rule 419A of the Indian Telegraph Rules, 1951.
Please provide us the dates and copies of the minutes of all meetings held by the Committee constituted under rule 419A of the Indian Telegraph Rules, 1951, and copies of all their recommendations.

4. Years to which the above requests pertain: 2012

5. Designation and address of the PIO from whom the information is required

Shri Subodh Saxena
Central Public Information Officer (RTI)
Director (DS-II), Room No 1006, Sanchar Bhawan
Department of Télécommunications (DoT)
Ministry of Communications and Information Technology
20, Ashoka Road, New Delhi — 110001

To the best of my belief, the détails sought for fall within your authority. Further, as provided under section 6(3) of the Right to Information Act ("RTI Act"), in case this application does not fall within your authority, I request you to transfer the same in the designated time (5 days) to the concerned authority and inform me of the same immediately.

Please provide me this information in electronic form, via the e-mail address provided above. This to certify that I, Smitha Krishna Prasad, am a citizen of India.

A fee of Rs. 10/- (Rupees Ten Only) has been made out in the form of a demand draft drawn in favour of "Pay and Accounts Officer (HQ), Department of Telecom" payable at New Delhi.

Date. Monday November 26,2012
Place: Bengaluru, Karnataka

Below is the reply received from the Department of Telecommunications for the above RTI application

Government of India
Department of Télécommunications
Sanchar Bhawan, 20, Ashoka Road. New Delhi -110 001
(DS-CelI)

No. DIR(DS-II)/RTI/2009																		Dated:ll/01/2013

To,
Centre for Internet and Society,
No. 194, 2-C Cross,
Domlur Stage II,
Bangalore - 560 071

This has reference to RTI application dated 27/12/2012 with reference to Blocking of website and Rule 419A of Indian Telegraph Rules, 1951

In this regard it is submitted that Internet Service licensees are to follow the provisions of Information Technology Act 2000 as amended from time to time. Under Information Technology Act 2000, "Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009" were notified on 27/10/2009.(Annexure) Aforesaid notified rules describes the "Designated Officer" for the purpose of issuing direction for blocking for access by the public any information generated, transmitted, received, stored or hosted in any computer resource under subsection (2) of Section 69(A) of the ACT. Wide Gazette Notification dated 20/01/2010 Group Coordinator , Cyber Law division, Department of Information Technology has been authorized and designated as "Designated Officer".

As per the directions of Group Coordinator, Cyber Law division, under Information Technology Act 2000, instructions for blocking/ unblocking of websites/URLs are issued to Internet Service Licensees.

As per the available information no instruction to Internet Service Providers has been issued for Blocking of http://www.fabulous.com/, http://www.buydomains.com/, http://sedo.co.uk/uk/home/welcome/ and http://sedo.co.uk/uk/home/welcome/ as mentioned in your RTI application.

Copies of Blocking order for which blocking instructions issued by DoT are not being provided are not provided as per Clause 16 of "Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009" which says "Strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof."
With reference to information (Para 4 & 5 of RTI Aplication ) on Rule 419A of Indian Telegraph Rule, 1951 , the RTI is being forwarded to Dir (AS-III) & CPIO, DoT for providing the information.
The appeal, it any, may be made before Shri Nitin Jain, DDG(DS) & Appellate Authority, Department of Télécommunications, Room No. 1201, Sanchar Bhawan, 20 Ashoka Road, Nevy Delhi-110 001 within 30 days from the date of receipt of this letter.

Encl: As above
																							(Subodh Saxena) DIR (DS-II) 011-2303 6860 011-2335 9454

Copy to:

(I) Shri Rajiv Kumar, CPIO & Director (AS-III), DoT, New Delhi

NOTIFICATION
New Delhi, the 27th October, 2009

G.S.R. 781 (E). — In exercise of the powers conferred by clause (z) of sub-section (2) of section 87, read with sub-section (2) of section 69A of the Information Technology Act 2000 (21 of 2000), the Central Government hereby makes the following rules, namely:

Short title and commencement — (1) These rules may be called the Information Technology (Procedure and Safeguards for Blocking for Access and Information by Public) Rules, 2009.
(2) They shall come into force on the date of their publication in the Official Gazette.
Definitions. — In these rules, unless the context otherwise requires. —
(a) "Act" means the Information Technology Act, 2000 (21 of 2000);
(b) "computer resource" means computer resource as defined in clause (k) of sub-section (1) of section 2 of the Act;
(c) "Designated Officer" means an officer designated as Designated Officer under rule 3;
(d) "Form" means a form appended to these rules;
(e) "intermediary" means an intermediary as defined in clause (w) of sub-section (1) of section 2 of the Act;
(f) "nodal officer" means the nodal officer designated as such under rule 4;
(g) "organisation" means
(i) Ministries or Departments of the Government of India;
(ii) State Governments and Union Territories;
(iii) Any agency of the Central Government, as may be notified in the Official Gazette, by the Central Government
(h) "request" means the request for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource;
(i) "Review Committee" means the Review Committee constituted under rule 419A of Indian Telegraph Rules, 1951.
Designated Officer — The Central Government shall designate by notification in Official Gazette, an officer of the Central Government not below the rank of a Joint Secretary, as the "Designated Officer", for the purpose of issuing direction for blocking for access by the public any information generated, transmitted. received,, stored or hosted in any computer resource under sub-section (2) of section 69A of the Act.
Nodal officer or organisation.— Every organisation for the purpose of these rules, shall designate one of its officer as the Nodal Officer and shall intimate the same to the Central Government in the Department of Information Technology under the Ministry of Communications and Information Technotogy, Government of India and also publish the name of the said Nodal Officer on their website.
Direction by Designated Officer. — The Designated Officer may, on receipt of any request from the Nodal Officer of an organisation or a competent court, by order direct any Agency of the Government or intermediary to block for access by the public any information or part thereof generated, transmitted, received, stored or hosted in any computer resource for any of the reasons specified in sub-section (1) of section 69A of the Act.
Forwarding of requests by organisation. — (1) Any person may send their complaint to the Nodal Officer of the concerned organisation for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource:
Provided that any request other than the one from the Nodal Officer of the organisation shall be sent with the approval of the Chief Secretary of the concerned State or Union territory to the Designated Officer.
Provided further that in case a Union territory has no Chief Secretary, then, such request may be approved by the Adviser to the Administrator of that Union territory.
(2) The organisation shall examine the complaint received under sub-rule (1) to satisfy themselves about the need for taking of action in relation to the reasons enumerated in sub-section (1) of section 69A of the Act and after being satisfied, it shall send the request through its Nodal Officer to the Designated Officer in the format specified in the Form appended to these rules.
(3) The Designated Officer shall not entertain any complaint or request for blocking of information directly from any person.
(4) The request shall be in writing on the letter head of the respective organisation, complete in all respects and may be sent either by mail or by fax or by e-mail signed with electronic signature of the Nodal Officer.
Provided that in case the request is sent by fax or by e-mail which is not signed with electronic signature, the Nodal Officer shall provide a signed copy of the request so as to reach the Designated Officer within a period of three days of receipt of the request by such fax or e-mail.
(5) On receipt, each request shall be assigned a number along with the date and time of its receipt by the Designated Officer and he shall acknowledge the receipt thereof to the Nodal Officer within a period of twenty four hours of its receipt.
Committee for examinatlon of request.— The request along with the printed sample content of the alleged offending information or part thereof shall be examined by a committee consisting of the Designated Officer as its chairperson and representatives, not below the rank of Joint Secretary in Ministries of Law and Justice, Home Affairs. Information and Broadcasting and the Indian Computer Emergency Response Team appointed under sub-section (1) of section 70B of the Act.
Examination of request.— (1) On receipt of request under rule 6, the Designated Officer shall make all reasonable efforts to identify the person or intermediary who has hosted the information or part thereof as well as the computer resource on which such information or part thereof is being hosted and where he is able to identify such person or intermediary and the computer resource hosting the informalion or part thereof which have been requested to be blocked for public access, he shall issue a notice by way of letters or fax or e-mail signed with electronic signatures to such person or intermediary in control of such computer resource to appear and submit their reply and clarifications, if any, before the committee referred to in rule 7, at a specified date and time, which shall not be less than forty-eight hours from the time of receipt of such notice by such person or intermediary.
(2) In case of non-appearance of such person or intermediary, who has been served with the notice under sub-rule (I), before the committee on such specified date and time, the committee shall give specific recommendation in writing with respect to the request received from the Nodal Officer, based on the information available with the committee.
(3) In case, such a person or intermediary, who has been served with the notice under sub-rule (1), is a foreign entity or body corporate as identified by the Designated Officer, notice shall be sent by way of letters or fax or e-mail signed with electronic signatures to such foreign entity or body corporate and any such foreign entity or body corporate shall respond to such a notice within the time specified therein, failing which the committee shall give specific recommendation in writing with respect to the request received from the Nodal Officer, based on the information available with the committee.
(4) The committee referred to in rule 7 shall examine the request and printed sample information and consider whether the request is covered within the scope of sub-section (1) of section 69A of the Act and that it is justifiable to block such information or part thereof and shall give specific recommendation in writing with respect to the request received from the Nodal Officer.
(5) The designated Officer shall submit the recommendation of the committee, in respect of the request for blocking of information along with the details sent by the Nodal Officer to the Secretary in the Department of Information Technology under the Ministry of Communications and Information Technology, Government of India (hereinafter referred to as the "Secretary, Department of Information Technology").
(6) The Designated Officer, on approval of the request by the Secretary, Department of Information Technology, shall direct any agency of the Government or the intermediary to block the offending information generaled, transmitted, received, stored or hosted in their computer resource for public access within time limit specified in the direction:
Provided that in case the request of the Nodal Officer is not approved by the Secretary, Department of Information Technology, the Designated Officer shall convey the same to such Nodal Officer.
Blocking of Information in cases of emergency.— (1) Notwithstanding anything contained in rules 7 and 8, the Designated Officer, in any case of emergency nature, for which no delay is acceptable, shall examine the request and printed sample information and consider whether the request is within the scope of sub-section (1) of section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit the request with specific recommendations in writing to Secretary, Department of Information Technology.
(2) In a case of emergency nature, tne Secretary. Department of Information Technology may, if he is satisfied that it is necessary or expedent and justifiable for blocking for public access of any information or part thereof through any computer resource and after recording reasons in writing as an interim measure issue such directions as he may consider necessary to such identified or identifiable persons or intermediary in control of such computer resource hosting such information or part thereof without giving him an opportunity of hearing.
(3) The Designated Officer, at ihe earliest but not later than forty-eight hours of issue of direction under sub-rule 2, shall bring the request before the committee referred to in rule 7 for its consideration and recommendation.
(4) On receipt of recommendations of committee, Secretary, Department of Information Technology, shall pass the final order as regard to approval of such request and in case the request for blocking is not approved by the Secretary. Department of Information Technology in his final order, the interim direction issued under sub-rule (2) shall be revoked and the person or intermediary in control of such information shall be accordingly directed to unblock the information for public access.
Process of order of court for blocking of Information — In case of an order from a competent court in India for blocking of any information or part thereof generated, transmitted, received, stored or hosted in a computer resource, the Designated Officer shall, immediately on receipt of certified copy of the court order, submit it to the Secretary, Department of Information Technology and initiate action as directed by the court.
Expeditious disposal of request - The request received from the Nodal Officer shall be decided expeditiously which in no case shall be more than seven working days from the date of receipt of the request.
Action for non-compliance of direction by Intermediary — In case the intermediary fails to comply with the direction issued to him under rule 9, the Designated Officer shall, with the prior approval of the Secretary, Department of Information Technology, initiate appropriate action as may be required to comply with the provisions of sub-section (3) of section 69A of the Act.
Intermediary to designate one person to receive and handle directions — (1) Every intermediary shall designate at least one person to receive and handle the directions for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource under these rules.
(2) The designated person of the intermediary shall acknowledge receipt of the directions to the Designated Officer within two hours on receipt of the direction through acknowledgement letter or fax or e-mail signed with electronic signature.
Meeting of Review Commlttee — The Review Committee shall meet at least once in two months and record its findings whether the directions issued under these rules are in accordance with the provisions of sub-seclion (1) of section 69A of the Act and if is of the opinion that the directions are not in accordance with the provisions referred above, it may set aside the directions and issue order for unblocking of said information generated, transmitted, received, stored or hosted in a computer resource for public access.
Maintenance of records by Designated Officer — The Designated Officer shall maintain complete record of the request received and action taken thereof, in electronic database and also in register of the cases of blocking for public access of the information generated, transmitted, received, stored or hosted in a computer resource.
Requests and complaints to be confidential — Strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof.

FORM
(See rule 6(2))

A. Complaint

Name of the complainant: --_________________________________________________________________
(Person who has sent the complaint to the Ministry/Department/State Govt./Nodal Officer)
Address: ________________________________________________________________________________
________________________________________________________________________________
City: ______________________________ Pin Code: __________________
Telephone: ________________________ (prefix STD code)
Fax (if any): _______________________
Mobile (if any): ______________________
Email (if any): __________________________________

B. Details of website/computer resource/intermediary/offending information hosted on the website
(Please give details wherever known)
URL / web address: ____________________________________
IP Address: _______________________________________
Hyperlink: ________________________________________
Server/Proxy Server address: ________________________________________
Name of the Intermediary: _________________________________________
URL of the Intermediary: __________________________________________
(Please attach screenshot/printout of the offending information)
Address or location of intermediary in case the intermediary is telecom service provider, network service provider, internet service provider, web-hosting service provider and cyber cafe or other form of intermediary for which information under points (7), (8), (9), (10), (11) and (12) are not available.
___________________________________________________________
___________________________________________________________
___________________________________________________________
C. Details of Request for blocking
Recommendations/Comments of the Ministry/State Govt: ________________________
________________________________________________________________________
________________________________________________________________________
The level at which the comments/recommendation have been approved
(Please specify designation) ________________________________________________
Have the complaint been examined in Ministry / State Government: Y/N
If yes, under which of the following reasons it falls (please tick):
(i) Interest of sovereignty or integrity of India
(ii) Defence of India
(iii) Security of the State
(iv) Friendly relations with foreign states
(v) Public order
(vi) For preventing incitement to the commission of any cognisable offence relating to above
D. Details of the Nodal Officer, forwarding the complaint along with recommendation of the Ministry/State Govt. and related enclosures
Name of the Nodal Officer: ___________________________________________
Designation: ______________________________________________________
Organisation: _____________________________________________________
Address: ________________________________________________ _________

__________________________________________________________

City: __________________________ Pin Code: _________________
Telephone: ___________________________ (prefix STD code)
Fax (if any) _____________________
Mobile (if any) ______________________
Email (if any): ___________________________
E: Any other information:
F: Enclosures:

1.

2.

3.

Date Place Signature

[No. 9(16)J2004-EC]
N. RAVI SHANKER, Jt. Secy

3855GI/09-5

For more details visit https://cis-india.org/internet-governance/resources/reply-to-rti-application-on-blocking-of-website-and-rule-419a-of-indian-telegraph-rules-1951

Removing Barriers to Connectivity: Connecting the Unconnected

praskrishna — 2013-11-09T03:14:43Z

The workshop was organised by Internet Society and ETNO on October 23, 2013. Pranesh Prakash was a panelist.

Click to read the details on IGF website here

In the spirit of Paragraph 50 of the Tunis Agenda, our panel aims to highlight best practices that will help in “turning the digital divide into digital opportunity”, and will look at what can be done to promote broadband penetration and access to infrastructure. By forging better Internet governance environments through dialogue and interaction, stakeholders can work together to build better local infrastructure and more efficient deployment of infrastructure. Internet technical community experts, policy-makers, and development experts know well the challenges that exist in promoting deployment of Internet infrastructure. From public-works challenges to human capacity development, each country may have their own unique challenges. Provisions and policies must be put in place to ensure that broadband connections are developed, maintained and improved to sustain the rise in Internet traffic and particularly to accommodate the fast growth of video traffic. Against this backdrop, this workshop proposes to assemble a group of experts and practitioners to discuss observations from the field (practical examples and information) about how to help encourage connectivity and to “lift” barriers to connectivity. We also will identify barriers for investment faced by the private sector and tries to define ways to improve the policy landscape and identify a sustainable economic model to foster private investment. We plan to do this by identifying connectivity challenges and by identifying best practices for working with all stakeholders to manage those challenges. The developing country perspective will be reflected, and the workshop will specifically address what is needed in practical terms to connect the unconnected – eg low-cost devices, open systems and public / private partnerships. Workshop participants will engage the audience to encourage a dialogue that seeks feed-back from participants. An output of the workshop would be a collaborative “living” list of best practices and observations identified during the workshop that can serve as a baseline to be added to given national and local dynamics.

Panelists

Raj Singh, Internet Society, Male, Technical Community, SINGAPORE, Asia-Pacific Group
Martin Levy, Hurricane Electric, Male, Private Sector, UNITED STATES, Western Europe and Others Group - WEOG
Christoph Steck, Telefonica, S.A., Male, Private Sector, SPAIN, Western Europe and Others Group - WEOG
Jennifer Haroon, Google, Female, Private Sector, UNITED STATES, Western Europe and Others Group - WEOG
Simon Milner, Facebook, Male, Private Sector, UNITED KINGDOM, Western Europe and Others Group - WEOG
Pranesh Prakash, Centre for Internet & Society India, Male, Civil Society, INDIA, Asia-Pacific Group

For more details visit https://cis-india.org/news/igf-2013-removing-barriers-to-connectivity

Religious pluralism and freedom of expression in India, Europe and other countries

praskrishna — 2013-11-08T05:54:06Z

The Venice-Delhi Seminars are Reset-Dialogues on Civilizations project, in cooperation with the Jamia Millia Islamia, Seminar and the India Habitat Centre is organizing this event from October 10 to 12, 2013. Chinmayi Arun will be speaking at this event.

Click to read the full details published by Reset DOC on October 10, 2013.

This year, the Rome-based international association Reset-Dialogues on Civilizations will continue promoting dialogue between cultures and the culture of dialogue, reciprocal awareness between East and West and valorising the cultural, religious and political differences in a globalized world.

The schedule for autumn 2013 is as follows; the next Venice-Delhi Seminars will take place from October 10 to 12 in Delhi with the participation of the Indian magazine Seminar, and Jamia Millia Islamia, the Islamic University of Delhi and the India Habitat Centre. After the first meeting in the Indian capital in October 2010 on the subject “Minorities and Pluralism” (see Seminar 621, 2011) and a second meeting in Venice at the Giorgio Cini Foundation from October 18 to 20, 2012, dedicated to “Cultural differences in times of economic turbulence. Social tensions, cultural conflicts and policies of integration in Europe and India”, the Venice-Delhi Seminars have become a regular event, with one being held in Venice and the next in Delhi.

Pluralism

The project’s general framework is religious and cultural pluralism, seen through the perspective analysis of social and political processes and exchanges between East and West. Every encounter is an opportunity to deepen political, social and economic trends that run through society, like India’s and, increasingly, European society, where cultural, ethnic and political differences coexist and interact. Each meeting consists of five sessions lasting three days and papers presented by by experts and academics from all over the world attending roundtable discussions dedicated to the analysis of policies relating to minorities and the global challenge of the multi-ethnic composition of our societies.

The proceedings and more articles from our 2012 edition in Venice, Italy, are published in the September 2013 issue of Seminar magazine. You can visit its website here: www.india-seminar.com

10-12 October 2013 – Third Venice-Delhi Seminars
Coexistence and mutual respect, rights to be protected, freedom of speech and freedom of worship, blasphemy, the ethics of responsibility

The third Venice-Delhi Seminars will take place from October 10 to 12, 2013 in Delhi and will be dedicated to three days of study on the subject “Religious Pluralism and Freedom of Expression in India and Europe: Coexistence and Mutual Respect, Rights to Protect, Freedom of Speech and Freedom of Worship, Blasphemy, Ethics of Responsibility”. The objective of this second round of the “Plural Future” project will be to critically examine the growing tension between the democratic need to protect differences and the right to freedom of expression and the vital need for modern democracies to guarantee peaceful coexistence between majorities and minorities, as well as freedom of worship in conditions of cultural and religious pluralism protected from the extremist excesses of demands based on ethnicity and identity. We will therefore also analyze the public visibility of radical and extremist tendencies from the United States to Europe, to Muslim-majority countries and India.

Analysis will take place from a perspective paying particular attention to the manner in which this wave of violent opposition to dialogue and cultural differences challenges liberal democratic order, tested by a new need to implement rights and respect of minorities. Specific importance will be attributed to conditions experienced by Muslim and Christian minorities. The subject of respect between communities and the rights of minorities will be analyzed also in the European context. European, Indian and American scholars will attend.

Particular attention will paid to the media in this 2013 edition, and its role in portraying cultural and religious differences as well as its capacity to encourage or prevent the development of peaceful co-existence and an acceptance of differences in conditions of cultural, religious and ethnic pluralism.

The Reset-Dialogues on Civilizations project has been organised also so as to involve a large number of students, graduates and doctoral students.

For more details visit https://cis-india.org/news/resetdoc-october-10-2013-religious-pluralism-and-freedom-of-expression-in-india-europe-other-countries

Reliance-Jio Users Complain Of Porn Websites Being Blocked; Company Yet To Issue Official Statement

Admin — 2018-10-29T02:35:43Z

Going by a lot of Jio network users, it seems that Mukesh Ambani’s Jio has banned hundreds of porn sites, in compliance with the order of the Department of Telecommunications.

The blog post was published by Logical Indian on October 27, 2018. Pranesh Prakash was quoted.

The order came after the Uttarakhand High Court on September 28, 2018, had directed the Centre to block over 850 pornographic websites. Many Jio users have taken to social media to show their protests. On Twitter, several users have threatened even to change their network if Jio doesn’t lift the ban.

However, the telecom operator has not issued an official statement confirming the ban or on the development so far. The complaints have come to notice after many users pointed out on social media platforms like Reddit and Twitter that several porn websites are no longer available on Jio network, as reported by the Financial Times.

The High Court’s Order

According to The Indian Express, the Uttarakhand High court’s order came after the alleged gang rape of a 16-year old girl by four students at her boarding school in Dehradun. It is alleged that the accused were “instigated by watching pornography” on their mobile phones before committing the crime.

In the order, the division bench of acting chief, justice Rajiv Sharma and justice Manoj Kumar Tiwari said, “There shall be a direction to all the Internet Service License Holders to punctually obey the notification dated 31st July 2015 and to block the publication or transmission of obscene material in any electronic form.” It further added that material containing sexually explicit act or conduct and also publishing or transmitting of material depicting children in sexually explicit acts should also be blocked.

Same crackdown in 2015

In 2015, the Department of Telecommunications had issued an order to block 857 porn websites. They had asked all the internet service providers to take compliance with the order and block the websites. A lot of people protested against this crackdown by the government. However, after receiving a huge criticism from the people, the government partially lifted the ban. But, following the rule, nothing had happened, and the porn sites were functioning as before, reported The Guardian.

An Indian think tank, Centre for Internet and Society member Pranesh Prakash said “It is illegitimate because it is not as though the government has found these websites unlawful … This is a blanket ban, and the government has not thought through the consequences,” reported by The Guardian.

The Logical Indian Take

Watching or not watching porn is a person’s liberty. India is a democratic nation, and according to our constitution, we are conferred with the freedom of expression and the right to personal liberty. So, this non-confirmed porn ban by Reliance Jio would be getting into the freedom of an individual.

After China, India has the second-largest number of internet users in the world. And, Reliance-Jio is just the third user base in India. The ban would not affect the population much but is definitely a threat to the user rights.

For more details visit https://cis-india.org/internet-governance/news/the-logical-indian-october-27-2018-reliance-jio-users-complain-of-porn-websites-being-blocked

Reliance Jio data leaked on website : report

praskrishna — 2017-07-10T14:53:42Z

Reliance Jio customer data was leaked on independent website magicapk.com, including details such as names, mobile numbers and email IDs , said a report.

The article was published by Livemint on July 10, 2017.

Reliance Jio Infocomm Ltd’s customer data was allegedly leaked on an independent website, magicapk.com, a report said. Jio, which crossed the 100 million mark in February, barely six months after it was launched, ended the financial year with 108.9 million subscribers as of 31 March.

The report, published first in a late-night article on Sunday on Fonearena.com, alleged that “several sensitive details” were exposed, including customers’ first and last names, mobile numbers, email IDs, circles, SIM activation dates and even the Aadhaar numbers. The Aadhaar numbers, however, were redacted on magicapk.

“To my disbelief I found my own details in the database and also couple of my colleagues are affected too,” wrote Varun Krish, the author of the article. However, if you now click on Magicapk.com, it reads: “This Account has been suspended .” The Registrar of the site, according to the whois database, is Godaddy.com, LLC.

When contacted, a Reliance Jio spokesperson said, “We have come across the unverified and unsubstantiated claims of the website and are investigating it. Prima facie, the data appears to be unauthentic. We want to assure our subscribers that their data is safe and maintained with highest security. Data is only shared with authorities as per their requirement. We have informed law enforcement agencies about the claims of the website and will follow through to ensure strict action is taken.”

Fonearena.com, on its site, has responded with a: “We still stand by our story.”

The report assumes significance because the site exposed redacted Aadhaar card details. There are nearly 1.2 billion Aadhaar number holders in the country. Aadhaar aims to plug leakages in the delivery of state benefits, such as subsidized grains to the poor, and aid in generating a savings of about Rs70,000 crore a year for the government. But data breaches have rattled citizens, especially since India does not have a Privacy Act.

In March, the Unique Identification Authority of India (UIDAI) blacklisted a common services centre for 10 years after it shared the Aadhaar details of former cricket captain Mahendra Singh Dhoni. On 25 April, Mint reported that many government departments, including the ministry of drinking water and sanitation, the Jharkhand Directorate of Social Security, and the Kerala government’s pension department, had published Aadhaar numbers of beneficiaries of the schemes they run in violation of the Aadhaar Act .

On 1 May, Bengaluru-based think tank Centre for Internet and Society (CIS) reported that a Central government ministry and a state government may have made public up to 135 million Aadhaar numbers .

Under the Aadhaar (Targeted Delivery of Financial Subsidies, Benefits and Services) Act, 2016, the unique identity number is mandatory only to receive social welfare benefits. However, tagging of the Aadhaar number is being made mandatory by the government for various schemes including PAN (permanent account number) accounts for taxation. On 7 July, the Supreme Court refused to pass any interim order against the mandatory use of Aadhaar for various government schemes. It, instead, suggested that petitioners call for immediate formation of a Constitution bench to decide on the case .

News of the alleged data leak also comes at a time when there have been a spate of cyber hacks.

For instance, just when companies started believing that WannaCry—the malware that held over 200,000 individuals across 10,000 organizations in nearly 100 countries to ransom—was on the wane, a virus christened GoldenEye (a variant of the Petya ransomware) by security firm Bitdefender Labs attacked companies, mostly in Ukraine. And while the target primarily appeared to be European countries, the ransomware was also reported to be making inroads in countries like India.

For more details visit https://cis-india.org/internet-governance/news/livemint-july-10-2017-reliance-jio-data-leaked-on-website-report

Relationship Between Privacy and Confidentiality

vipul — 2014-12-30T14:27:02Z

The laws of breach of confidentiality and breach of privacy at first glance seem very similar to each other. If a doctor releases health information relating to a patient that s/he is treating then such an act would give rise to a claim both under the law of privacy as well as under the law of confidentiality.

Similar is the case with financial information released by a bank, etc. This makes one wonder exactly where and how it is that the law of breach of privacy intersects with that of the law of confidentiality. An enquiry into such a complex question of law requires a deeper appreciation of the relationship between these two different principles of law which require a better understanding of the origins and evolutions of these principles.

In this paper we shall try to explore the origins of both the law of privacy as well as confidentiality as they have evolved in the field of tort law in India. Although our primary focus is Indian law, however in order to understand the evolution of these principles it is necessary to discuss their evolution in three common law jurisdictions, viz. the United States of America, the United Kingdom and India. The reason for an analysis of these three jurisdictions will become clear as the reader goes further into this paper, however for ease of reference it would be better if the reason is clarified here itself. The concept of a right against breach of confidentiality has existed in English common law for a very long time, however the concept of a claim for breach of privacy originated only in American law, other than some statutory protection granted in the last couple of decades, has still not been granted recognition in English common law.

After a discussion of the evolution of these principles in both American and English law, we will then discuss these principles as they exist in Indian law. This discussion will (or should) at once become easier to understand and digest because of the deeper understanding of the interplay between these two principles gained from a reading of the first two chapters.

Privacy Torts: American Origins

Looking at the origins of privacy law it has been argued by many academics that the law of privacy in common law has its origins in an article published by Samuel Warren and Louis Brandies in the Harvard Law Review in 1890.[1] Warren and Brandeis suggested that one could generalise certain cases on defamation, breach of copyright in unpublished letters, trade secrets and breach of confidence as all based upon the protection of a common value which they called privacy.[2] The authors relied upon the existing body of cases relating to the law of confidentiality and interpreted it in a way so as to create a "right to privacy" which has evolved into a right quite different from the common understanding of confidentiality.

Although there are certain criticisms of the article by Warren and Brandeis, the background in which the article was written and the lacuna that these two scholars were trying to fill in the law of confidentiality as it existed at that time gives some context to the reasons why they felt the need to move away from the existing principles and propose a new principle of law. Samuel Warren and Louis Brandies were both worried about the invasion of personal space by the advent of the news and print media which was experiencing a boom during the late 19^th century. [3] Warren and Brandeis were worried that although the existing body of law on confidentiality would protect a person from having their picture put on a postcard by their photographer without their consent,[4] however if there was no relationship between the two persons there would be no remedy available to the aggrieved party. [5]

One of the criticisms of Warren and Brandeis' article is that to propose the existence of a right to privacy they relied heavily on the English case of Prince Albert v. Strange[6]. It has been proposed by some academics that this was a case which dealt with confidentiality and literary property which was characterized by Warren and Brandeis as a privacy case. [7] In this case Prince Albert sought to restrain publication of otherwise unpublished private etchings and lists of works which were made by Queen Victoria. The etchings appeared to have been removed surreptitiously from the private printer to whom these etchings were given and came into the possession of one Mr. Strange who wanted to print and sell the etchings. The case specifically rejected the existence of a right to privacy in the following words:

"The case is not put by the Plaintiff on any principle of trust or contract, but on property; there is nothing to show contract or confidence. It cannot be maintained that privacy constitutes property, or that the Court will interfere to protect the owner in the enjoyment of it; Chadler v. Thompson (3 Camp. 80). In William Aldred's case (9 Rep. 58 b.), Wray C. J. said, "The law does not give an action for such things of delight"."

Infact the case mentioned the term "privacy" only once, but that statement was made in the context of whether a delay in granting an injunction in such cases would defeat the entire purpose of the suit and was not preceeded or followed by any discussion on a distinct right to privacy:

"In the present case, where privacy is the right invaded, postponing the injunction would be equivalent to denying it altogether. The interposition of this Court in these cases does not depend upon any legal right, and to be effectual, it must be immediate."

However, Warren and Brandeis interpreted this case in a different manner and came to the conclusion that the "principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality".[8]

The article further incorporated the language of Judge Cooley's treatise (Cooley on Torts)[9] which used the phrase "the right to be let alone". They said that identifying this common element should enable the courts to declare the existence of a general principle which protected a person's appearance, sayings, acts and personal relations from being exposed in public. [10] However it has been argued by some scholars that this phrase was not used by Judge Cooley with as much import as has been given by Warren and Brandeis in their article. The phrase was used by Judge Cooley in mere passing while discussing why tort law protected against not only batteries but also assaults with no physical contact, and had no connection with privacy rights. [11]

Warren and Brandeis' article started getting almost immediate attention and some amount of recognition from various quarters,[12] though it cannot be said that it was universally well received. [13] However over time this tort of privacy slowly started getting recognized by various Courts throughout the United States and got a huge boost when it was recognized in a brief section in the First Restatement of Torts published in 1939. The right to privacy in American jurisprudence got another boost and became fully entrenched later on specially with the endorsement of Dr. William Prosser who discussed privacy in his treatise on the law of torts, the subsequent editions of which had a more and more elaborate discussion of the tort of privacy. This development of the law was further enhanced by Dr. Prosser's position as a reporter of the Second Restatement of Torts, which imported a four part taxonomy of the privacy tort which had been suggested by Dr. Prosser in his previous works.[14]

Thus we see how, beginning with the article by Warren and Brandeis in 1890, the privacy tort in American jurisprudence developed over the years and became further entrenched due to the influence of William Prosser and his works on the tort of privacy.

Privacy Torts in England: An Elaborate Principle of Confidentiality

The law of confidentiality in English law, as applied in certain specific contexts such as attorney client privileges, [15] doctor patient confidentiality,[16] etc. has been applied since hundreds and even though cases relating to the breach of confidentiality had already existed, however the case of Prince Albert v. Strange,[17] be it due to the interesting facts or the fame of the parties involved, is still considered as the clearest and most well established precedent for the tort of breach of confidence.[18] Similar cases relying upon this tort kept being decided by the English Courts but the tort of confidentiality was further cemented in English common law by the case of Saltman Engineering Co. v. Campbell Engineering Co.,[19] which expanded the application of the principle by holding that the obligation to respect confidence is not limited to only instances where parties have a contractual relationship.

The seminal case on the tort of breach of confidentiality in English law was that of Coco v. A.N Clark (Engineers) Ltd., [20] where an inventor enjoined a moped manufacturer from using design ideas communicated by the inventor during failed contractual negotiations with the manufacturer.[21] In this case Megarry J., held that a case of breach of confidence normally requires three elements to succeed, apart from contract, (i) the information itself must have the necessary quality of confidence about it, (ii) that information must have been imparted in circumstances importing an obligation of confidence, and (iii) there must be an unauthorised use of that information to the detriment of the party communicating it.

Relying on the principles enunciated in the above cases and developed by subsequent decisions, English law relating to the tort of breach of confidentiality developed into a robust and flexible body of law protecting personal and commercial information from disclosure. Infact by the late 1990s, English law was very broad and gradually expanding in its scope of the tort of breach of confidentiality and Courts had stretched the idea of an obligation of confidence so as to include cases where there was not even any communication between the parties, such as secret photography and wiretapping. Further since third parties had already been reposed with an obligation of confidence when they knowingly received confidential material even if they did not have any relationship with the plaintiff, therefore the law of confidence could be extended to parties outside the relationship in which the confidence was initially made. This, although was not as broad and overarching as the American privacy tort, still had the ability to cover a wide range of cases. [22]

While English Courts on the one hand kept trying to expand the scope of the confidentiality tort, they also categorically rejected the existence of a privacy tort on the lines developed under American jurisprudence. The suggestion of the existence of such a privacy tort in English law was most recently rejected by the House of Lords in the case of Wainwright v. Home Office,[23] by Lord Bingham in the following words:

"What the courts have so far refused to do is to formulate a general principle of "invasion of privacy" (I use the quotation marks to signify doubt about what in such a context the expression would mean) from which the conditions of liability in the particular case can be deduced."

In this case the plaintiffs made a claim against the prison authorities for strip searching them before they went to meet an inmate and since the incident occurred before the coming into force of the Human Rights Act, 1998 of the UK had not yet come into force, so the plaintiffs also argued that there was an existing tortuous remedy based on a breach of privacy in common law. While discussing whether English Courts were amenable to or had ever recognized such a common law tort of privacy, the House of Lords cited decisions such as Malone v Metropolitan Police Comr, [24] and R v Khan (Sultan),[25] in both of which the courts refused to recognize a general right to privacy in the context of tapping of telephones.

The absence of any general cause of action for invasion of privacy was also acknowledged by the Court of Appeal in the context of a newspaper reporter and photographer invading into a patient's hospital bedroom in an effort to purportedly interview him and taking photographs, in the case of Kaye v Robertson.[26]

Thus relying on the above line of cases the House of Lords concluded that a general right to privacy does not exist in English common law:

"All three judgments are flat against a judicial power to declare the existence of a high-level right to privacy and I do not think that they suggest that the courts should do so. The members of the Court of Appeal certainly thought that it would be desirable if there was legislation to confer a right to protect the privacy of a person in the position of Mr Kaye against the kind of intrusion which he suffered, but they did not advocate any wider principle."

Thus it is clear that English Courts have time and again denied the existence of an American style right to privacy as emanating from common law. The Courts have instead tried to expand and widen the scope of the tort of confidentiality so as to cover various situations which may arise due to the pervasiveness of technology and which the traditional interpretation of the law of confidentiality was not equipped to deal with.

Therefore it is now a little clearer that the reason for the existence of the confusion between the torts of privacy and confidentiality is that the right to privacy had its origins in the common law precedents but the right to privacy developed as a distinct and separate right in America, primarily due to the influence of Warren and Brandeis's article as well as the works of William Prosser, whereas the Courts in England did not adopt this principle of privacy and instead favored a much more elaborate right to confidentiality. In the Indian context, this has led to some amount of confusion because, Indian case laws, as will be seen in the following chapter, borrowed heavily from American jurisprudence when discussing the right to privacy and not all cases have been able to clearly bring out the difference between the principles of privacy and confidentiality.

Indian Law

Tort of Breach of Privacy

Any analysis of the right to privacy in India, be it in the realm of constitutional law or tort law almost always includes within its ambit a discussion of the two celebrated cases of Kharak Singh v. Union of India[27] and Govind v. State of M.P.,[28] which elevated the right to privacy to the pedestal of a fundamental right under Indian law. However, an unintended consequence of this has been that pretty much every commentator on Indian law includes a discussion of these two cases when discussing the right to privacy, be it under constitutional law or under tort law. However, there is one problem with such an analysis of the right to privacy, viz. these two cases were dealing with a pure constitutional law question and relied upon American case laws to read into Article 21 an inbuilt right to privacy. However from a strictly tort law perspective, these cases are not relevant at all, and the seminal case for the tort of breach of privacy would have to be the Apex Court decision in R. Rajagopal v. State of Tamil Nadu, [29] which specifically recognized this distinction and stated that the right to privacy has two different aspects, (i) the constitutional right to privacy, and (ii) the common law right to privacy.

The facts of the R. Rajagopal case revolve around the publishing of the autobiography written by the prisoner Auto Shankar, who had been placed in jail for committing multiple murders. The autobiography contained proof of involvement of many IAS, IPS officers in his crimes. Although Shankar had initially requested that the magazine print his autobiography, he later requested that his story not be published. The publishers held that it was their right to publish the autobiography while the IPS and IAS officers on the other hand claimed that Auto Shankar was trying to defame them and wanted to ban its publication. The Supreme Court in this case, implicitly accepts the existence of a right to privacy under Indian tort law when

"21.The question is how far the principles emerging from the United States and English decisions are relevant under our constitutional system. So far as the freedom of press is concerned, it flows from the freedom of speech and expression guaranteed by Article 19(1)(a). But the said right is subject to reasonable restrictions placed thereon by an existing law or a law made after the commencement of the Constitution in the interests of or in relation to the several matters set out therein. Decency and defamation are two of the grounds mentioned in clause (2). Law of torts providing for damages for invasion of the right to privacy and defamation and Sections 499/500 IPC are the existing laws saved under clause (2). "

Discussing the distinction between the two aspects of the right to privacy, the Court held:

"The right to privacy as an independent and distinctive concept originated in the field of Tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognized. This right has two aspects which are but two faces of the same coin (1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and (2) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion. The first aspect of this right must be said to have been violated where, for example, a person's name or likeness is used, without his consent, for advertising or non-advertising purposes or for that matter, his life story is written whether laudatory or otherwise and published without his consent as explained hereinafter. In recent times, however, this right has acquired a constitutional status."

After a discussion of the various arguments presented by the parties (a number of which are not relevant for the purposes of this paper), the Supreme Court laid down the following principles regarding freedom of the press and the right to privacy:

(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.

(3) There is yet another exception to the rule in (1) above - indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule."

The above principles have ruled the roost on the issue of privacy and freedom of the press under Indian law, with certain minimal additions. It has been held by the Delhi High Court that even though a claim for damages may be made under tort law for breach of privacy, the Court may even grant a pre-publication injunction to prevent a breach of privacy.[30] The principles laid down inR. Rajagopal were further clarified in the case of Indu Jain v. Forbes Incorporated, [31] where a case was filed by Indu Jain in the Delhi High Court to stop Forbes magazine from featuring her family in the Forbes List of Indian Billionaires. After a discussion of the various authorities and cases on the issue the Court summarized the principles relating to privacy and freedom of the press and applying those principles rejected the claim of the plaintiff. However for the purposes of our discussion these principles are extremely useful, and have been listed below:

"(V) Public or general interest in the matter published has to be more than mere idle curiosity.

(VI) Public figures like public officials play an influential role in ordering society. They have access to mass media communication both to influence the policy and to counter-criticism of their views and activities. The citizen has a legitimate and substantial interest in the conduct of such persons and the freedom of press extends to engaging in uninhibited debate about the involvement of public figures in public issues and events. (Ref. (1994) 6 SCC 632 R. Rajagopal & Anr. Vs. State of Tamil Nadu & Others Para 18).

(VII) Right to privacy that rests in an individual may be waived by him by express or implied consent or lost by a course of conduct which estops its assertions. Such implication may be deduced from the conduct of the parties and the surrounding circumstances.

(VIII) A public person or personage is one who by his standing, accomplishment, fame, mode of life or by adopting a profession or calling which gives the public a legitimate interest in his doings, affairs and character has so become a public figure and thereby relinquishes at least a part of his privacy.

(IX) The standard to be adopted for assessing as to whether the published material infracts the right to privacy of any individual is that of an ordinary man of common sense and prudence and not an out of ordinary or hyper-sensitive man. (Ref. (2007) 1 SCC 143 Ajay Goswami v. UOI & Ors.).

(X) Even though in this country, the freedom of press does not have presumptive priority as in some other jurisdictions including the United States of America, however the importance of a free media of communication to a healthy democracy has to receive sufficient importance and emphasis.

(XI) In evaluating a relief to be granted in respect of a complaint against infraction of the right to privacy, the court has to balance the rights of the persons complaining of infraction of right to privacy against freedom of press and the right of public to disclosure of newsworthy information. Such consideration may entail the interest of the community and the court has to balance the proportionality of interfering with one right against the proportionality of impact by infraction of the other.

(XII) The publication has to be judged as a whole and news items, advertisements and published matter cannot be read without the accompanying message that is purported to be conveyed to public. Pre-publication censorship may not be countenanced in the scheme of the constitutional framework unless it is established that the publication has been made with reckless disregard for truth, publication shall not be normally prohibited. (Ref.: (2007) 1 SCC 143 Ajay Goswami Vs. UOI & Ors.; (1994) 6 SCC 632 R. Rajagopal & Anr. Vs. State of Tamil Nadu & Others and AIR 2002 Delhi 58 Khushwant Singh & Anr. Vs. Maneka Gandhi)."

Thus we see that the right to privacy in Indian law, even in the realm of tort law has had an inextricable connection with constitutional principles and constitutional cases have had a very huge impact on the development of this right in India. However a perusal of these cases shows that the right to privacy is available only insofar as information which is personal in nature, however in situations where the information is non-personal in nature the right to privacy may not be as useful and this is where, as we shall see below, the tort of breach of confidentiality comes in to fill the void.

Tort of Breach of Confidentiality

While there have been a number of landmark cases in India on the issue of breach of confidence in a contractual or a statutory setting, these cases are not very relevant for a discussion on the tort of breach of confidentiality. This is not to say that the tort of breach of confidentiality is non-existent in Indian law, the Courts here have time and again accepted that there does exist such a tortuous remedy in certain situations. We shall now try to examine the contours of this principle of torts by discussing some of the landmark cases on the topic.

In the case of Petronet LNG Ltd. v. Indian Petro Group and Another, ^{^[32]} the Delhi High Court considered a claim by a corporation seeking to prevent a news and media group from reporting its confidential negotiations and contracts with counterparties. The claim was based upon both the right to privacy as well as the right to confidentiality but in this case the court, looking at the fact that the plaintiff was a corporation and also the type of information involved denied the claim on the right to privacy. However, it did allow the injunction claimed by the corporation based on the right to confidentiality. Summarizing its discussion of the right to confidentiality, the Court stated thus:

"49. It may be seen from the above discussion, that originally, the law recognized relationships- either through status (marriage) or arising from contract (such as employment, contract for services etc) as imposing duties of confidentiality. The decision in Coco (1969) marked a shift, though imperceptibly, to a possibly wider area or zone. Douglas noted the paradigm shift in the perception, with the enactment of the Human Rights Act; even before that, in Attorney General (2) (also called the Spycatcher case, or the Guardian case) the Court acknowledged that there could be situations -where a third party (likened to a passerby, coming across sensitive information, wafting from the top of a building, below) being obliged to maintain confidentiality, having regard to the nature and sensitivity of the information….."

While discussing the factors that the Court would have to consider while deciding a claim based on the breach of confidentiality, the Delhi High Court relied upon and quoted from English judgments as follows:

"50. Even while recognizing the wider nature of duty - in the light of the Human Rights Act, 1998, and Articles 8 and 10 of the European Convention, it was cautioned that the court, in each case, where breach of confidentiality, is complained, and even found- has to engage in a balancing process; the factors to be weighed while doing so, were reflected in A v. B Plc [2003] QB 195; the latest judgment in H.R.H. Prince of Wales indicates that the court would look at the kind of information, the nature of relationship, etc, and also consider proportionality, while weighing whether relief could be given:

"The court will need to consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public….

..In applying the test of proportionality, the nature of the relationship that gives rise to the duty of confidentiality may be important."

Holding that the principles discussed in the English cases given in the context of individual rights of confidentiality would also hold good in the case of corporations, the Court held that:

"51. Though the reported cases, discussed above, all dealt with individual right, to confidentiality of private information (Duchess of Argyll;Frazer; Douglas; Campbell and H.R.H. Prince of Wales) yet, the formulations consciously approved in the Guardian, and Campbell, embrace a wider zone of confidentiality, that can possibly be asserted. For instance, professional records of doctors regarding treatment of patients, ailments of individuals, particulars, statements of witnesses deposing in investigations into certain types of crimes, particulars of even accused who are facing investigative processes, details victims of heinous assaults and crimes, etc, may, be construed as confidential information, which, if revealed, may have untoward consequences, casting a corresponding duty on the person who gets such information - either through effort, or unwittingly, not to reveal it. Similarly, in the cases of corporations and businesses, there could be legitimate concerns about its internal processes and trade secrets, marketing strategies which are in their nascent stages, pricing policies and so on, which, if prematurely made public, could result in irreversible, and unknown commercial consequences. However, what should be the approach of the court when the aggrieved party approaches it for relief, would depend on the facts of each case, the nature of the information, the corresponding content of the duty, and the balancing exercise to be carried out. It is held, therefore, that even though the plaintiff cannot rely on privacy, its suit is maintainable, as it can assert confidentiality in its information."

Apart from privacy, the law of confidentiality has been used in cases where there has been a definite harm to one side but none of the other laws provide for any relief. This was the situation in the case of Zee Telefilms Limited v. Sundial Communications Pvt Ltd, [33] where a company which developed television and media programming had discussed their concept of a new show with a network during negotiations which could not be finalized. The network however subsequently tried to start a new show which was based on the same concept and idea as the one presented by the plaintiff company. The plaintiff sued the network, inter alia on a claim for breach of confidential information and asked that the network be prevented from airing its show. In this case the plaintiff's claim based on copyright was rejected because copyright only subsists on the expression of an idea and not the idea itself, therefore the tort of breach of confidentiality had to be resorted to in order to give relief to the plaintiffs. Discussing the difference between confidentiality and copyright, the Division Bench of the Bombay High Court held:

"10. The law of the confidence is different from law of copyright. In paragraph 21.2 (page 721), [of Copinger and Skone-James on Copyright (13th Edn.)] the learned author has pointed out that right to restrain publication of work upon the grounds, that to do so would be breach of trust of confidence, is a broader right than proprietary right of copyright. There can be no copyright of ideas or information and it is not infringement of copyright to adopt or appropriate ideas of another or to publish information received from another, provided there is no substantial copying of the form in which those ideas have, or that information has, been previously embodied. But if the ideas or information have been acquired by a person under such circumstances that it would be a breach of good faith to publish them and he has no just case or excuses for doing so, the court may grant injunction against him. The distinction between the copyright and confidence may be of considerable importance with regard to unpublished manuscripts / works submitted, and not accepted, for publication or use. Whereas copyright protects material that has been reduced to permanent form, the general law of confidence may protect either written or oral confidential communication. Copyright is good against the world generally while confidence operates against those who receive information or ideas in confidence. Copyright has a fixed statutory time limit which does not apply to confidential information, though in practice application of confidence usually ceases when the information or ideas becomes public knowledge. Further the obligation of confidence rests not only on the original recipient, but also on any person who received the information with knowledge acquired at the time or subsequently that it was originally given in confidence."

A similar view, in a similar fact situation Single Judge Bench of the Delhi High Court had also came to a similar conclusion in the case of Anil Gupta v. Kunal Das Gupta.[34]

The law of confidentiality has also come to the rescue of employers in attempting to prevent important business and client information from being taken or copied by the employees for their personal gain. In the case of Mr. Diljeet Titus, Advocate v. Mr. Alfred A. Adebare, [35] the Delhi High Court had to decide a claim based on breach of confidentiality when some ex-employees of a law firm tried to take away client lists and drafts of legal agreements and opinions from their earlier employer-law firm. Discussing the importance of preventing employees or former employees from away which such actions, the Court held as follows:

"81. I am in full agreement with the views expressed in Margaret, Duchess of Argyll (Feme Sole) v. Duke of Argyll and Ors. (1965) 1 All ER 611, that a Court must step in to restrain a breach of confidence independent of any right under law. Such an obligation need not be expressed but be implied and the breach of such confidence is independent of any other right as stated above. The obligation of confidence between an advocate and the client can hardly be re-emphasised. Section 16 of the Copyright Act itself emphasizes the aspect of confidentiality de hors even the rights under the Copyright Act. If the defendants are permitted to do what they have done it would shake the very confidence of relationship between the advocates and the trust imposed by clients in their advocates. The actions of the defendants cause injury to the plaintiff and as observed by Aristotle: 'It makes no difference whether a good man defrauds a bad one, nor whether a man who commits an adultery be a good or a bad man; the law looks only to the difference created by the injury."

The Court allowed the claim of the law firm holding that the relationship between a law firm and its attorneys is of a nature where information passed between them would be covered by the law of confidence and would not be allowed to be copied or used by the attorneys for their individual gain.

Recently, in 2009, the principles relating to breach of confidentiality under Indian law were very succinctly summarized by the Bombay High Court in the case of Urmi Juvekar Chiang v. Global Broadcasting News Limited,[36] where in a fact situation similar to the ones in Zee Telefilms case and the Anil Gupta case, the Court discussed a number of previous cases on breach of confidentiality and laid down the following principles:

"8. The principles on which the action of breach of confidence can succeed, have been culled out as

(i) he (Plaintiff) had to identify clearly what was the information he was relying on;

(ii) he (Plaintiff) had to show that it was handed over in the circumstances of confidence;

(iii) he (Plaintiff) had to show that it was information of the type which could be treated as

confidential; and

(iv) he (Plaintiff) had to show that it was used without licence or there was threat to use it…… It is further noted that at interlocutory stage, the Plaintiff does not have to prove (iii) and (iv) referred to above, as he will at the trial. But the Plaintiff must address them and show that he has atleast seriously arguable case in relation to each of them."

From the above discussion on Indian law it is clear that the Courts in India have tried to incorporate the best of both worlds, in the sense that it has taken and adopted the principle of a right to privacy, a breach of which would give rise to an action in torts, from American jurisprudence while rejecting the stand taken by English Courts in rejecting such a right to privacy. However, Indian Courts have often referred to the decisions given by English Courts as well as American Courts in interpreting the principle of the right to confidentiality. Therefore on an overall examination it would appear that insofar as the rights to privacy and confidentiality are concerned, Indian jurisprudence has more in common with American law rather than English law.

Conclusion

The law of privacy does not seem to have existed as a recognizable principle of law before it was propounded in the article by Warren and Brandeis in the Harvard Law Review in 1890. It slowly gained traction in American jurisprudence over the twentieth century but was rejected outright by the Courts in England, which preferred to follow the principle of confidentiality rather than privacy and tried to expand that old principle to fit newer and newer situations. Since Indian law borrows heavily from English law and to a smaller extent also from American law, the Courts in India have accepted both, the principle of a right to privacy as well as a right to confidentiality. This is not to say that the Courts in America do not recognize a right to confidentiality and only accept a right to privacy. Infact American Courts, just like their Indian counterparts, recognize both a right to confidentiality as well as a right to privacy.

Since Indian courts accept both the concept of breach of privacy as well as breach of confidentiality, one should not try to figure out if a particular circumstance is more appropriate for the one over the other, but actually use both principles to supplement one another for achieving the same objective. For example in situations where the conditions required for the application of the law of confidentiality do not exist such as disclosure of personal information by a person who did not receive it in a confidential capacity, one could apply the principle of privacy to prevent such information being disclosed or claim a remedy after disclosure. On the other hand if the information to be disclosed is not of a personal nature then one could try to utilize the law of confidentiality to prevent disclosure or claim damages.

[1] Harry Kalven, Jr., Privacy in Tort Law-Were Warren and Brandeis Wrong?, "31 Law & Contemp. Problems". 326, 327 (1966). Elbridge L. Adams, The Right of Privacy, and Its Relation to the Law of Libel, 39 AM. L. REV. 37 (1905).

[2] Wainwright v. Home Office, 2003 UKHL 53.

[3] Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, "96 Georgetown Law Journal", 123 at 128 and 132 (2007).

[4] Pollard v. Photographic Co., (1888) 40 Ch. D. 345.

[5] It is also said that this concern arose out of the personal experience of Samuel Warren, whose wedding announcement as well as the report on his sister-in-law's death in the newspapers did not go down well with him. http://www.english.illinois.edu/-people-/faculty/debaron/380/380powerpoint/privacy.pdf

[6] (1848) 41 Eng. Rep. 1171 (Ch.).

[7] Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, "96 Georgetown Law Journal", 123 (2007).

[8] Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, "4 Harvard Law Review", 193 at 207 (1890).

[9] Thomas M. Cooley, The Law Of Torts, 2^nd Ed., 1888, p. 29.

[10] Wainwright v. Home Office, 2003 UKHL 53.

[11] Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, "96 Georgetown Law Journal", 123 (2007).

[12] As early as in 1891, the case of Schuyler v. Curtis, 45 NYS 787 (Sup. Ct., 1891) involving the erection of a statue of a dead person, recognized the principle proposed in Warren and Brandeis' article.

[13] Most famously the case of Robertson v. Rochester folding Box Co., 64 NE 442 (NY 1902) where the New York Court of appeals specifically rejected a the existence of a right to privacy as proposed by Warren and Brandeis.

[14] Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, "96 Georgetown Law Journal", 123 (2007).

[15] Bredd v. Lovelace, (1577) 21 Eng. Rep. 33 (Ch.)

[16] For doctor patient confidentiality we need look no further than the Hippocratic Oath itself which states "Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret".

[17] (1848) 41 Eng. Rep. 1171 (Ch.).

[18] Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 GEORGETOWN LAW JOURNAL, 123 (2007).

[19] [1948] 65 RPC 203.

[20] [1969] RPC 41 (UK).

[21] Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 GEORGETOWN LAW JOURNAL, 123 (2007).

[22] Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 GEORGETOWN LAW JOURNAL, 123 (2007).

[23] 2003 UKHL 53.

[24] [1979] Ch 344.

[25] [1997] AC 558.

[26] [1991] FSR 62

[27] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=3641 .

[28] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=6014 .

[29] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=11212 .

[30] Phoolan Devi v. Shekhar Kapoor and others, http://indiankanoon.org/doc/793946/.

[31] http://lobis.nic.in/dhc/GM/judgement/25-01-2010/GM12102007S21722006.pdf

[32] http://lobis.nic.in/dhc/SRB/judgement/25-04-2009/SRB13042009S11022006.pdf

[33] http://indiankanoon.org/doc/603848/ .

[34] http://indiankanoon.org/doc/1709727/ .

[35] http://delhicourts.nic.in/may06/DILJEET%20TITUS%20VS.%20ALFED%20A.%20ADEBARE.htm .

[36] http://indiankanoon.org/doc/582634/ .

For more details visit https://cis-india.org/internet-governance/blog/relationship-between-privacy-and-confidentiality

Regulatory Perspectives on Net Neutrality

pranesh — 2015-07-18T02:46:30Z

In this paper Pranesh Prakash gives an overview on why India needs to put in place net neutrality regulations, and the form that those regulations must take to avoid being over-regulation.

With assistance by Vidushi Marda (Programme Officer, Centre for Internet and Society) and Tarun Krishnakumar (Research Volunteer, Centre for Internet and Society). I would like to specially thank Vishal Misra, Steve Song, Rudolf van der Berg, Helani Galpaya, A.B. Beliappa, Amba Kak, and Sunil Abraham for extended discussions, helpful suggestions and criticisms. However, this paper is not representative of their views, which are varied.

Today, we no longer live in a world of "roti, kapda, makaan", but in the world of "roti, kapda, makaan aur broadband". ^{^[1]} This is recognized by the National Telecom Policy IV.1.2, which states the need to "recognise telecom, including broadband connectivity as a basic necessity like education and health and work towards 'Right to Broadband'."^{^[2]} According to the IAMAI, as of October 2014, India had 278 million internet users. ^{^[3]} Of these, the majority access Internet through their mobile phones, and the WEF estimates only 3 in 100 have broadband on their mobiles.^{^[4]} Thus, the bulk of our population is without broadband. Telecom regulation and net neutrality has a very important role in enabling this vision of Internet as a basic human need that we should aim to fulfil.

1. Why should we regulate the telecom sector?

All ICT regulation should be aimed at achieving five goals: achieving universal, affordable access; ^{^[5]} ensuring and sustaining effective competition in an efficient market and avoiding market failures; protecting against consumer harms; ensuring maximum utility of the network by ensuring interconnection; and addressing state needs (taxation, security, etc.). Generally, all these goals go hand in hand, however some tensions may arise. For instance, universal access may not be provided by the market because the costs of doing so in certain rural or remote areas may outweigh the immediate monetary benefits private corporations could receive in terms of profits from those customers. In such cases, to further the goal of universal access, schemes such as universal service obligation funds are put in place, while ensuring that such schemes either do not impact competition or very minimally impact it.

It is clear that to maximise societal benefit, effective regulation of the ICT sector is a requirement, which otherwise, due to the ability of dominant players to abuse network effect to their advantage, is inherently prone towards monopolies. For instance, in the absence of regulation, a dominant player would charge far less for intra-network calls than inter-network calls, making customers shift to the dominant network. This kind of harm to competition should be regulated by the ICT regulator. However, it is equally true that over-regulation is as undesirable as under-regulation, since over-regulation harms innovation - whether in the form of innovative technologies or innovative business models. The huge spurt of growth globally of the telecom sector since the 1980s has resulted not merely from advancements in technology, but in large part from the de-monopolisation and deregulation of the telecom sector.^{^[6]} Similarly, the Internet has largely flourished under very limited technology-specific regulation. For instance, while interconnection between different telecom networks is heavily regulated in the domestic telecom sector, interconnection between the different autonomous systems (ASes) that make up the Internet is completely unregulated, thereby allowing for non-transparent pricing and opaque transactions. Given this context, we must ensure we do not over-regulate, lest we kill innovation.

2. Why should we regulate Net Neutrality? And whom should we regulate?

We wouldn't need to regulate Net Neutrality if ISPs were not "gatekeepers" for last-mile access. "Gatekeeping" occurs when a single company establishes itself as an exclusive route to reach a large number of people and businesses or, in network terms, nodes. It is not possible for Internet services to reach the customers of the telecom network without passing through the telecom network. The situation is very different in the middle-mile and for backhaul. Even though anti-competitive terms may exist in the middle-mile, especially given the opacity of terms in "transit agreements", a packet is usually able to travel through multiple routes if one route is too expensive (even if that is not the shortest network path, and is thus inefficient in a way). However, this multiplicity of routes is not possible in the last mile.

This leaves last mile telecom operators (ISPs) in a position to unfairly discriminate between different Internet services or destinations or applications, while harming consumer choice. This is why we believe that promoting the five goals mentioned above would require regulation of last-mile telecom operators to prevent unjust discrimination against end-users and content providers.

Thus, net neutrality is the principle that we should regulate gatekeepers to ensure they do not use their power to unjustly discriminate between similarly situated persons, content or traffic.

3. How should we regulate Net Neutrality?

3.1. What concerns does Net Neutrality raise? What harms does it entail?

Discriminatory practices at the level of access to the Internet raises the following set of concerns:

1. Freedom of speech and expression, freedom of association, freedom of assembly, and privacy.

2. Harm to effective competition

a. This includes competition amongst ISPs as well as competition amongst content providers.

b. Under-regulation here may cause harm to innovation at the content provider level, including through erecting barriers to entry.

c. Over-regulation here may cause harm to innovation in terms of ISP business models.

3. Harm to consumers

a. Under-regulation here may harm consumer choice and the right to freedom of speech, expression, and communication.

b. Over-regulation on this ground may cause harm to innovation at the level of networking technologies and be detrimental to consumers in the long run.

4. Harm to "openness" and interconnectedness of the Internet, including diversity (of access, of content, etc.)

a. Exceptions for specialized services should be limited to preserve the open and interconnectedness of the Internet and of the World Wide Web.

It might help to think about Net Neutrality as primarily being about two overlapping sets of regulatory issues: preferential treatment of particular Internet-based services (in essence: content- or source-/destination-based discrimination, i.e., discrimination on basis of 'whose traffic it is'), or discriminatory treatment of applications or protocols (which would include examples like throttling of BitTorrent traffic, high overage fees upon breaching Internet data caps on mobile phones, etc., i.e., discrimination on the basis of 'what kind of traffic it is').

Situations where the negative or positive discrimination happens on the basis of particular content or address should be regulated through the use of competition principles, while negative or positive discrimination at the level of specific class of content, protocols, associated ports, and other such sender-/receiver-agnostic features, should be regulated through regulation of network management techniques . The former deals with instances where the question of "in whose favour is there discrimination" may be asked, while the latter deals with the question "in favour of what is there discrimination".

In order to do this, a regulator like TRAI can use both hard regulation - price ceilings, data cap floors, transparency mandates, preventing specific anti-competitive practices, etc. - as well as soft regulation - incentives and disincentives.

3.1.1 Net Neutrality and human rights

Any discussion on the need for net neutrality impugns the human rights of a number of different stakeholders. Users, subscribers, telecom operators and ISPs all possess distinct and overlapping rights that are to be weighed against each other before the scope, nature and form of regulatory intervention are finalised. The freedom of speech, right to privacy and right to carry on trade raise some of the most pertinent questions in this regard.

For example, to properly consider issues surrounding the practice of paid content-specific zero-rating from a human rights point of view, one must seek to balance the rights of content providers to widely disseminate their 'speech' to the largest audiences against the rights of consumers to have access to a diverse variety of different, conflicting and contrasting ideas.

This commitment to a veritable marketplace or free-market of ideas has formed the touchstone of freedom of speech law in jurisdictions across the world as well as finding mention in pronouncements of the Indian Supreme Court. Particular reference is to be made to the dissent of Mathew, J. inBennett Coleman v. Union of India^{^[7]} and of the majority Sakal Papers v. Union of India^{^[8]} which rejected the approach.

Further, the practice of deep-packet inspection, which is sometimes used in the process of network management, raises privacy concerns as it seeks to go beyond what is "public" information in the header of an IP packet, necessary for routing, to analysing non-public information. ^{^[9]}

3.2 What conditions and factors may change these concerns and the regulatory model we should adopt?

While the principles relating to Net Neutrality remain the same in all countries (i.e., trying to prevent gatekeepers from unjustly exploiting their position), the severity of the problem varies depending on competition in the market, on the technologies, and on many other factors. One way to measure fair or stable allocation of the surplus created by a network - or a network-of-networks like the Internet - is by treating it as a convex cooperation game and thereupon calculating that game's Shapley value:^{^[10]} in the case of the Internet, this would be a game involving content ISPs, transit ISPs, and eyeball (i.e., last-mile) ISPs. The Shapley value changes depending on the number of competitors there are in the market: thus, the fair/stable allocation when there's vibrant competition in the market is different from the fair/stable allocation in a market without such competition. That goes to show that a desirable approach when an ISP tries to unjustly enrich itself by charging other network-participants may well be to increase competition, rather than directly regulating the last-mile ISP. Further, it shows that in a market with vibrant last-mile competition, the capacity of the last-mile ISP to unjustly are far diminished.

In countries which are remote and have little international bandwidth, the need to conserve that bandwidth is high. ISPs can regulate that by either increasing prices of Internet connections for all, or by imposing usage restrictions (such as throttling) on either heavy users or bandwidth-hogging protocols. If the amount of international bandwidth is higher, the need and desire on part of ISPs to indulge in such usage restrictions decreases. Thus, the need to regulate is far higher in the latter case, than in the former case.

The above paragraphs show that both the need for regulation and also the form that the regulation should take depend on a variety of conditions that aren't immediately apparent.

Thus, the framework that the regulator sets out to tackle issues relating to Net Neutrality are most important, whereas the specific rules may need to change depending on changes in conditions. These conditions include:

● last-mile market

○ switching costs between equivalent service providers

○ availability of an open-access last-mile

○ availability of a "public option" neutral ISP

○ increase or decrease in the competition, both in wired and mobile ISPs.

● interconnection market

○ availability of well-functioning peering exchanges

○ availability of low-cost transit

● technology and available bandwidth

○ spectrum efficiency

○ total amount of international bandwidth and local network bandwidth

● conflicting interests of ISPs

○ do the ISPs have other business interests other than providing Internet connectivity? (telephony, entertainment, etc.)

3.3 How should we deal with anti-competitive practices?

Anti-competitive practices in the telecom sector can take many forms: Abuse of dominance, exclusion of access to specific services, customer lock-in, predatory pricing, tying of services, cross-subsidization, etc., are a few of them. In some cases the anti-competitive practice targets other telecom providers, while in others it targets content providers. In the both cases, it is important to ensure that ensure that telecom subscribers have a competitive choice between effectively substitutable telecom providers and an ability to seamlessly switch between providers.

3.3.1 Lowering Switching Costs

TRAI has tackled many of these issues head on, especially in the mobile telephony space, while competitive market pressures have helped too:

● Contractual or transactional lock-in. The easiest way to prevent shifting from one network to another is by contractually mandating a lock-in period, or by requiring special equipment (interoperability) to connect to one's network. In India, this is not practised in the telecom sector, with the exception of competing technologies like CDMA and GSM. Non-contractual lock-ins, for instance by offering discounts for purchasing longer-term packages, are not inherently anti-competitive unless that results in predatory pricing or constitutes an abuse of market dominance. In India, switching from one mobile provider to another, though initiated 15 years into the telecom revolution, is in most cases now almost as easy as buying a new SIM card.^{^[11]} TRAI may consider proactive regulation against contractual lock-in.

● Number of competitors. Even if switching from one network to another is easy, it is not useful unless there are other equivalent options to switch to. In the telecom market, coverage is a very important factor in judging equivalence. Given that last mile connectivity is extremely expensive to provide, the coverage of different networks are very different, and this is even more true when one considers wired connectivity, which is difficult to lay in densely-populated urban and semi-urban areas and unprofitable in sparsely-populated areas. The best way to increase the number of competitors is to make it easier for competitors to exist. Some ways of doing this would be through enabling spectrum-sharing, lowering right-of-way rents, allowing post-auction spectrum trading, and promoting open-access last-mile fibre carriers and to thereby encourage competition on the basis of price and service and not exclusive access to infrastructure.

● Interconnection and mandatory carriage. The biggest advantage a dominant telecom player has is exclusive access to its customer base. Since in the telecom market, no telco wants to not connect to customers of another telco, they do not outright ban other networks. However, dominant players can charge high prices from other networks, thereby discriminating against smaller networks. In the early 2000s, Airtel-to-Airtel calls were much cheaper than Airtel-to-Spice calls. However, things have significantly changed since then. TRAI has, since the 2000s, heavily regulated interconnection and imposed price controls on interconnection ("termination") charges.^{^[12]} Thus, now, generally, inter-network calls are priced similarly to intra-network calls. And if you want cheaper Airtel-to-Airtel calls, you can buy a special (unbundled) pack that enables an Airtel customer to take advantage of the fact that her friends are also on the same network, and benefits Airtel since they do not in such cases have to pay termination charges. Recently, TRAI has even made the interconnection rates zero in three cases: landline-to-landline, landline-to-cellular, and cellular-to-landline, in a bid to decrease landline call rates, and incentivise them, allowing a very low per call interconnection charges of 14 paise for cellular-to-cellular connections. ^{^[13]}

○ With regard to Net Neutrality, we must have a rule that no termination charges or carriage charges may be levied by any ISP upon any Internet service. No Internet service may be discriminated against with regard to carriage conditions or speeds or any other quality of service metric. In essence all negative discrimination should be prohibited. This means that Airtel cannot forcibly charge WhatsApp or any other OTT (which essentially form a different "layer") money for the "privilege" of being able to reach Airtel customers, nor may Airtel slow down WhatsApp traffic and thus try to force WhatsApp to pay. There is a duty on telecom providers to carry any legitimate traffic ("common carriage"), not a privilege. It is important to note that consumer-facing TSPs get paid by other interconnecting Internet networks in the form of transit charges (or the TSP's costs are defrayed through peering). There shouldn't be any separate charge on the basis of content (different layer from the carriage) rather than network (same layer as the carriage). This principle is especially important for startups, and which are often at the receiving end of such discriminatory practices.

● Number Portability. One other factor that prevents users from shifting between one network and another is the fact that they have to change an important aspect of their identity: their phone number (this doesn't apply to Internet over DSL, cable, etc.). At least in the mobile space, TRAI has for several years tried to mandate seamless mobile number portability. The same is being tried by the European Commission in the EU. ^{^[14]} While intra-circle mobile number portability exists in India - and TRAI is pushing for inter-circle mobile number portability as well^{^[15]} - this is nowhere as seamless as it should be.

● Multi-SIM phones. The Indian market is filled with phones that can accommodate multiple SIM cards, enabling customers to shift seamlessly between multiple networks. This is true not just in India, but most developing countries with extremely price-sensitive customers. Theoretically, switching costs would approach zero if in a market with full coverage by n telecom players every subscriber had a phone with n SIM slots with low-cost SIM cards being available.

The situation in the telecom sector with respect to the above provides a stark contrast to the situation in the USA, and to the situation in the DTH market. In the USA, phones get sold at discounts with multi-month or multi-year contracts, and contractual lock-ins are a large problem. Keeping each of the above factors in mind, the Indian mobile telecom space is far more competitive than the US mobile telecom space.

Further, in the Indian DTH market, given that there is transactional lock-in (set-top boxes aren't interoperable in practice, though are mandated to be so by law^{^[16]}), there are fewer choices in the market; further, the equivalent of multi-SIM phones don't exist with respect to set-top boxes. Further, while there are must-carry rules with respect to carriage, they can be of three types: 1) must mandatorily provide access to particular channels^{^[17]} (positive obligation, usually for government channels); 2) prevented from not providing particular channels (negative obligation, to prevent anti-competitive behaviour and political censorship); and 3) must mandatorily offer access to at least a set number of channels (positive obligation for ensuring market diversity). ^{^[18]} Currently, only (1) is in force, since despite attempts by TRAI to ensure (3) as well.^{^[19]}

If the shifting costs are low and transparency in terms of network practice is reported in a standard manner and well-publicised, then that significantly weakens the "gatekeeper effect", which as we saw earlier, is the reason why we wish to introduce Net Neutrality regulation. This consequently means, as explained above in section 3.2, that despite the same Net Neutrality principles applying in all markets and countries, the precise form that the Net Neutrality regulations take in a telecom market with low switching costs would be different from the form that such regulations would take in a market with high switching costs.

3.3.2 Anti-competitive Practices

Some potential anti-competitive practices, which are closely linked, are cross-subsidization, tying (anti-competitive bundling) of multiple services, and vertical price squeeze. All three of these are especial concerns now, with the increased diversification of traditional telecom companies, and with the entry into telecom (like with DTH) of companies that create content. Hence, if Airtel cross-subsidizes the Hike chat application that it recently acquired, ^{^[20]} or if Reliance Infocomm requires customers to buy a subscription to an offering from Reliance Big Entertainment, or if Reliance Infocomm meters traffic from another Reliance Big Entertainment differently from that from Saavn, all those would be violative of the principle of non-discrimination by gatekeepers. This same analysis can be applied to all unpaid deals and non-commercial deals, including schemes such as Internet.org and Wikipedia Zero, which will be covered later in the section on zero-rating.

While we have general rules such as sections 3 and 4 of the Competition Act, we do not currently have specific rules prohibiting these or other anti-competitive practices, and we need Net Neutrality regulation that clearly prohibit such anti-competitive practices so that the telecom regulator can take action for non-compliance . We cannot leave these specific policy prescriptions unstated, even if they are provided for in section 3 of the Competition Act. These concerns are especial concerns in the telecom sector, and the telecom regulator or arbitrator should have the power to directly deal with these, instead of each case going to the Competition Commission of India. This should not affect the jurisdiction of the CCI to investigate and adjudicate such matters, but should ensure that TRAI both has suo motu powers, and that the mechanism to complain is made simple (unlike the current scenario, where some individual complainants may fall in the cracks between TRAI and TDSAT).

3.3.3 Zero-rating

Since a large part of the net neutrality debate in India involves zero-rating practices, we deal with that in some length. Zero-rating is the practice of not counting (aka "zero-rating") certain traffic towards a subscriber's regular Internet usage. The zero-rated traffic could be zero-priced or fixed-price; capped or uncapped; subscriber-paid, Internet service-paid, paid for by both, or unpaid; content- or source/destination-based, or agnostic to content or source/destination; automatically provided by the ISP or chosen by the customer . The motivations for zero-rating may also be varied, as we shall see below. Further, depending on the circumstances, zero-rating could be competitive or anti-competitive. All forms of zero-rating result in some form of discrimination, but not all zero-rating is harmful, nor does all zero-rating need to be prohibited.

While, as explained in the section on interconnection and carriage above, negative discrimination at the network level should be prohibited, that leaves open the question of positive discrimination. It follows from section 3.1 that the right frame of analysis of this question is harm to competition, since the main harm zero-rating is, as we shall see below, about discriminating between different content providers, and not discrimination at the level of protocols, etc.

Whether one should allow for any form of positive discrimination at the network level or not depends on whether positive discrimination of (X) has an automatic and unfair negative impact on all (~X). That, in turn, depends on whether (~X) is being subject to unfair competition. As Wikipedia notes, "unfair competition means that the gains of some participants are conditional on the losses of others, when the gains are made in ways which are illegitimate or unjust." Thus, positive discrimination that has a negative impact on effective competition shall not be permitted, since in such cases it is equivalent to negative discrimination ("zero-sum game") . Positive discrimination that does not have a negative impact on effective competition may be permitted, especially since it results in increased access and increases consumer benefit, as long as the harm to openness and diversity is minimized .

While considering this, one should keep in mind the fact that startups were, 10-15 years ago, at a huge disadvantage with regard to wholesale data purchase. The marketplaces for data centres and for content delivery networks (which speed up delivery of content by being located closer, in network terms, to multiple last-mile ISPs) were nowhere near as mature as they are today, and the prices were high. There was a much higher barrier to startup entry than there is today, due to the prices and due to larger companies being able to rely on economies of scale to get cheaper rates. Was that unfair? No. There is no evidence of anti-competitive practices, nor of startups complaining about such practices. Therefore, that was fair competition, despite specific input costs that were arguably needed (though not essential) for startups to compete being priced far beyond their capacity to pay.

Today the marketplace is very different, with a variety of offerings. CDNs such as Cloudflare, which were once the preserve of rich companies, even have free offerings, thus substantially lowering barriers for startups that want faster access to customers across the globe.

Is a CDN an essential cost for a startup? No. But in an environment where speed matters and customers use or don't use a service depending on speed; and where the startup's larger competitors are all using CDNs, a startup more or less has to. Thankfully, given the cheap access to CDNs these days, that cost is not too high for a startup to bear. If the CDN market was not competitive enough, would a hypothetical global regulator have been justified in outright banning the use of CDNs to 'level' the playing field? No, because the hypothetical global regulator instead had the option to (and would have been justified in) regulating the market to ensure greater competition.

A regulator should not prohibit an act that does not negatively impact access, competition, consumer benefit, nor openness (including diversity), since that would be over-regulation and would harm innovation.

3.3.3.1 Motivations for Zero-Rating

3.3.3.1.1 Corporate Social Responsibility / Incentivizing Customers to Move Up Value Chain

There exist multiple instances where there is no commercial transaction between the OTT involved and the telecom carrier, in which zero-priced zero-rating of specific Internet content happens. We know that there is no commercial transaction either through written policy (Wikipedia Zero) or through public statements (Internet.org, a bouquet of sites). In such cases, the telecom provider would either be providing such services out of a sense of public interest, given the social value of those services, or would be providing such services out of self-interest, to showcase the value of particular Internet set the same time.

The apprehended risk is that of such a scheme creating a "walled garden", where users would be exposed only to those services which are free since the search and discovery costs of non-free Internet (i.e., any site outside the "walled garden") would be rather high. This risk, while real, is rather slim given the fact that the economic incentives for those customers who have the ability to pay for "Internet packs" but currently do not find a compelling reason to do so, or out of both a sense of public interest and self-interest of the telecom providers works against this.

In such non-commercial zero-priced zero-rating, a telecom provider would only make money if and only if subscribers start paying for sites outside of the walled garden. If subscribers are happy in the walled garden, the telecom provider starts losing money, and hence has a strong motivation to stop that scheme. If on the other hand, enough subscribers start becoming paying customers to offset the cost of providing the zero-priced zero-rated service(s) and make it profitable, that shows that despite the availability of zero-priced options a number of customers will opt for paid access to the open Internet and the open Web, and the overall harms of such zero-priced zero-rating would be minimal. Hence, the telecom providers have an incentive to keep the costs of Internet data packs low, thus encouraging customers who otherwise wouldn't pay for the Internet to become paying customers.

There is the potential of consumer harm when users seek to access a site outside of the walled garden, and find to their dismay that they have been charged for the Internet at a hefty rate, and their prepaid balance has greatly decreased. This is an issue that TRAI is currently appraised of, and a suitable solution would need to be found to protect consumers against such harm.

All in all, given that the commercial interests of the telecom providers align with the healthy practice of non-discrimination, this form of limited positive discrimination is not harmful in the long run, particularly because it is not indefinitely sustainable for a large number of sites. Hence, it may not be useful to ban this form of zero-priced zero-rating of services as long as they aren't exclusive, or otherwise anti-competitive (a vertical price-squeeze, for instance), and the harm to consumers is prohibited and the harm to openness/diversity is minimized.

3.3.3.1.2 Passing on ISP Savings / Incentivizing Customers to Lower ISP's Cost

Suppose, for instance, an OTT uses a CDN located, in network distance terms, near an eyeball ISP. In this case, the ISP has to probably pay less than it would have to had the same data been located in a data centre located further away, given that it would have fewer interconnection-related charges.

Hence the monetary costs of providing access to different Web destinations are not equal for the ISP. This cost can be varied either by the OTT (by it locating the data closer to the ISP - through a CDN, by co-locating where the ISP is also present, or by connecting to an Internet Exchange Point which the ISP is also connected to - or by it directly "peering" with the ISP) or by the ISP (by engaging in "transparent proxying" in which case the ISP creates caches at the ISP level of specific content (usually by caching non-encrypted data the ISP's customers request) and serves the cached content when a user requests a site, rather than serving the actual site). None of the practices so far mentioned are discriminatory from the customer's perspective with regard either to price or to prioritization, though all of them enable faster speeds to specific content. Hence none of the above-mentioned practices are considered even by the most ardent Net Neutrality advocates to be violations of that principle. ^{^[21]} However, if an ISP zero-rates the content to either pass on its savings to the customer^{^[22]} or to incentivize the customer to access services that cost the ISP less in terms of interconnection costs, that creates a form of price discrimination for the customer, despite it benefiting the consumer.

The essential economic problem is that the cost to the ISP is variable, but the cost to the customer is fixed. Importantly, this problem is exacerbated in India where web hosting prices are high, transit prices are high, peering levels are low, and Internet Exchange Points (IXPs) are not functioning well. ^{^[23]} These conditions create network inefficiencies in terms of hosting of content further away from Indian networks in terms of network distance, and thus harms consumers as well as local ISPs. In order to set this right, zero-rating of this sort may be permitted as it acts as an incentive towards fixing the market fundamentals. However, once the market fundamentals are fixed, such zero-rating may be prohibited.

This example shows that the desirability or otherwise of discriminatory practices depends fully on the conditions present in the market, including in terms of interconnection costs.

3.3.3.1.3 Unbundling Internet into Services ("Special Packs")

Since at least early 2014, mobile operators have been marketing special zero-rating "packs". These packs, if purchased by the customer, allow capped or in some instances uncapped, zero-rating of a service such as WhatsApp or Facebook, meaning traffic to/from that service will not be counted against their regular Internet usage.

For a rational customer, purchasing such a pack only makes sense in one of two circumstances:

● The person has Internet connectivity on her Internet-capable phone, but has not purchased an "Internet data pack" since she doesn't find the Internet valuable. Instead, she has heard about "WhatsApp", has friends who are on it, and wishes to use that to reduce her SMS costs (and thereby eat into the carriage provider's ability to charge separately for SMSes). She chooses to buy a WhatsApp pack for around ₹25 a month instead of paying ₹95 for an all-inclusive Internet data pack.

● The person has Internet connectivity on her Internet-capable phone, and has purchased an "Internet data pack". However, that data pack is capped and she has to decide between using WhatsApp and surfing web sites. She is on multiple WhatsApp groups and her WhatsApp traffic eats up 65% of her data cap. She thus has to choose between the two, since she doesn't want to buy two Internet data packs (each costing around ₹95 for a month). She chooses to buy a WhatsApp pack for ₹25 a month, paying a cumulative total of ₹120 instead of ₹190 which she would have had to had she bought two Internet data packs. In this situation, "unbundling" is happening, and this benefits the consumer. Such unbundling harms the openness and integrity of the Internet.

If users did not find value in the "special" data packs, and there is no market demand for such products, they will cease to be offered. Thus, assuming a telco's decision to offer such packs is purely customer-demand driven - and not due to deals it has struck with service providers - if Orkut is popular, telcos would be interested in offering Orkut packs and if Facebook is popular, they would be interested in offering a Facebook pack. Thus, clearly, there is nothing anti-competitive about such customer-paid zero-rating packs, whereas they clearly enhance consumer benefit. Would this increase the popularity of Orkut or Facebook? Potentially yes. But to prohibit this would be like prohibiting a supermarket from selectively (and non-collusively) offering discounts on popular products. Would that make already popular products even more popular? Potentially, yes. But that would not be seen as a harm to competition but would be seen as fair competition. This contravenes the "openness" of the Internet (i.e., the integral interconnected diversity that an open network like the Internet embodies) as an independent regulatory goal. The Internet, being a single gateway to a mind-boggling variety of services, allows for a diverse "long tail", which would lose out if the Internet was seen solely as a gateway to popular apps, sites, and content. However, given that this is a choice exercised freely by the consumer, such packs should not be prohibited, as that would be a case of over-regulation.

The one exception to the above analysis of competition, needless to say, is if that these special packs aren't purely customer-demand driven and are the product of special deals between an OTT and the telco. In that case, we need to ensure it isn't anti-competitive by following the prescriptions of the next section.

3.3.3.1.4 Earning Additional Revenues from Content Providers

With offerings like Airtel Zero, we have a situation where OTT companies are offering to pay for wholesale data access used by their customers, and make accessing their specific site or app free for the customer. From the customer's perspective, this is similar to a toll-free number or a pre-paid envelope or free-to-air TV channel being offered on a particular network.

However, from the network perspective, these are very different. Even if a customer-company pays Airtel for the toll-free number, that number is accessible and toll-free across all networks since the call terminates on Airtel networks and Airtel pays the connecting network back the termination charge from the fee they are paid by the customer-company. This cannot happen in case of the Internet, since the "call" terminates outside of the reach of the ISP being paid for zero-rating by the OTT company; hence unless specific measures are taken, zero-rating has to be network-specific.

The comparison to free-to-air channels is also instructive, since in 2010 TRAI made recommendations that consumers should have the choice of accessing free-to-air channels à-la-carte, without being tied up to a bouquet.^{^[24]} This would, in essence, allow a subscriber to purchase a set-top box, and without paying a regular subscription fee watch free-to-air channels. ^{^[25]} However, similar to toll-free numbers, these free-to-air channels are free-to-air on all MSO's set-top boxes, unlike the proposed Airtel Zero scheme under which access to a site like Flipkart would be free for customers on Airtel's network alone.

Hence, these comparisons, while useful in helping think through the regulatory and competition issues, should not be used as instructive exact analogies, since they aren't fully comparable situations.

3.3.3.1.5 Market Options for OTT-Paid Zero-Rating

As noted above, a competitive marketplace already exists for wholesale data purchase at the level of "content ISPs" (including CDNs), which sell wholesale data to content providers (OTTs). This market is at present completely unregulated. The deals that exist are treated as commercial secrets. It is almost certain that large OTTs get better rates than small startups due to economies of scale.

However, at the eyeball ISP level, it is a single-sided market with ISPs competing to gain customers in the form of end-users. With a scheme like "Airtel Zero", this would get converted into a double-sided market, with a gatekeeper without whom neither side can reach the other being in the middle creating a two-sided toll. This situation is ripe for market abuse: this situation allows the gatekeeper to hinder access to those OTTs that don't pay the requisite toll or to provide preferential access to those who pay, apart from providing an ISP the opportunity to "double-dip".

One way to fix this is to prevent ISPs from establishing a double-sided market. The other way would be to create a highly-regulated market where the gatekeeping powers of the ISP are diminished, and the ISP's ability to leverage its exclusive access over its customers are curtailed. A comparison may be drawn here to the rules that are often set by standard-setting bodies where patents are involved: given that these patents are essential inputs, access to them must be allowed through fair, reasonable, and non-discriminatory licences. Access to the Internet and common carriers like telecom networks, being even more important (since alternatives exist to particular standards, but not to the Internet itself), must be placed at an even higher pedestal and thus even stricter regulation to ensure fair competition.

A marketplace of this sort would impose some regulatory burdens on TRAI and place burdens on innovations by the ISPs, but a regulated marketplace harms ISP innovation less than not allowing a market at all.

At a minimum, such a marketplace must ensure non-exclusivity, non-discrimination, and transparency. Thus, at a minimum, a telecom provider cannot discriminate between any OTTs who want similar access to zero-rating. Further, a telecom provider cannot prevent any OTT from zero-rating with any other telecom provider. To ensure that telecom providers are actually following this stipulation, transparency is needed, as a minimum.

Transparency can take one of two forms: transparency to the regulator alone and transparency to the public. Transparency to the regulator alone would enable OTTs and ISPs to keep the terms of their commercial transactions secret from their competitors, but enable the regulator, upon request, to ensure that this doesn't lead to anti-competitive practices. This model would increase the burden on the regulator, but would be more palatable to OTTs and ISPs, and more comparable to the wholesale data market where the terms of such agreements are strictly-guarded commercial secrets. On the other hand, requiring transparency to the public would reduce the burden on the regulator, despite coming at a cost of secrecy of commercial terms, and is far more preferable.

Beyond transparency, a regulation could take the form of insisting on standard rates and terms for all OTT players, with differential usage tiers if need be, to ensure that access is truly non-discriminatory. This is how the market is structured on the retail side.

Since there are transaction costs in individually approaching each telecom provider for such zero-rating, the market would greatly benefit from a single marketplace where OTTs can come and enter into agreements with multiple telecom providers.

Even in this model, telecom networks will be charging based not only on the fact of the number of customers they have, but on the basis of them having exclusive routing to those customers. Further, even under the standard-rates based single-market model, a particular zero-rated site may be accessible for free from one network, but not across all networks: unlike the situation with a toll-free number in which no such distinction exists.

To resolve this, the regulator may propose that if an OTT wishes to engage in paid zero-rating, it will need to do so across all networks, since if it doesn't there is risk of providing an unfair advantage to one network over another and increasing the gatekeeper effect rather than decreasing it.

However, all forms of competitive Internet service-paid zero-priced zero-rating, even when they don't harm competition, innovation amongst content providers, or consumers, will necessarily harm openness and diversity of the Internet. For instance, while richer companies with a strong presence in India may pay to zero-rate traffic for their Indian customers, decentralized technologies such as XMPP and WebRTC, having no central company behind them, would not, leading to customers preferring proprietary networks and solutions to such open technologies, which in turn, thanks to the network effect, leads to a vicious cycle. These harms to openness and diversity have to be weighed against the benefit in terms of increase in access when deciding whether to allow for competitive OTT-paid zero-priced zero-rating, as such competition doesn't exist in a truly level playing field . Further, it must be kept in mind that there are forms of zero-priced zero-rating that decrease the harm to openness / diversity, or completely remove that harm altogether: that there are other options available must be acknowledged by the regulator when considering the benefit to access from competitive OTT-paid zero-priced zero-rating.

3.3.3.1.6 Other options for zero-rating

There are other models of zero-priced zero-rating that either minimize the harm is that of ensuring free Internet access for every person. This can take the form of:^{^[26]}

● A mandatorily "leaky" 'walled garden':

○ The first-degree of all hyperlinks from the zero-rated OTT service are also free.

○ The zero-rated OTT service provider has to mandatorily provide free access to the whole of the World Wide Web to all its customers during specified hours.

○ The zero-rated OTT service provider has to mandatorily provide free access to the whole of the World Wide Web to all its customers based on amount on usage of the OTT service.^{^[27]}

● Zero-rating of all Web traffic

○ In exchange for viewing of advertisements

○ In exchange for using a particular Web browser

○ At low speeds on 3G, or on 2G.

3.3.3.2. What kinds of zero-rating are good

The majority of the forms of zero-rating covered in this section are content or source/destination-based zero-rating. Only some of the options covered in the "other options for zero-rating" section cover content-agnostic zero-rating models. Content-agnostic zero-rating models are not harmful, while content-based zero-rating models always harm, though to varying degrees, the openness of the Internet / diversity of OTTs, and to varying degrees increase access to Internet-based services. Accordingly, here is an hierarchy of desirability of zero-priced zero-rating, from most desirable to most harmful:

1. Content- & source/destination-agnostic zero-priced zero-rating.^{^[28]}

2. Content- & source/destination-based non-zero-priced zero-rating, without any commercial deals, chosen freely & paid for by users. ^{^[29]}

3. Content- & source/destination-based zero-priced zero-rating, without any commercial deals, with full transparency. ^{^[30]}

4. Content- & source/destination-based zero-priced zero-rating, on the basis of commercial deal with partial zero-priced access to all content, with non-discriminatory access to the same deal by all with full transparency.^{^[31]}

5. Content- & source/destination-based zero-priced zero-rating, on the basis of a non-commercial deal, without any benefits monetary or otherwise, flowing directly or indirectly from the provider of the zero-rated content to the ISP, with full transparency. ^{^[32]}

6. Content- & source-destination-based zero-priced zero-rating, across all telecom networks, with standard pricing, non-discriminatory access, and full transparency.

7. Content- & source-destination-based zero-priced zero-rating, with standard pricing, non-discriminatory access, and full transparency.

8. Content- & source-destination-based zero-priced zero-rating, with non-discriminatory access, and full transparency.

9. Content- & source-destination-based zero-priced zero-rating, with non-discriminatory access, and transparency to the regulator.

10. Content- & source-destination-based zero-priced zero-rating, without any regulatory framework in place.

3.3.4 Cartels and Oligopoly

While cartels and oligopolies may have an impact on Net Neutrality, they are not problems that any set of anti-discrimination rules imposed on gatekeepers can fix. Further, cartels and oligopolies don't directly enhance the ability of gatekeepers to unjustly discriminate if there are firm rules against negative discrimination and price ceilings and floors on data caps are present for data plans. Given this, TRAI should recommend that this issue be investigated and the Competition Commission of India should take this issue up.

3.4 Reasonable Network Management Principles

Reasonable network management has to be allowed to enable the ISPs to manage performance and costs on their network. However, ISPs may not indulge in acts that are harmful to consumers in the name of reasonable network management. Below are a set of guidelines for when discrimination against classes of traffic in the name of network management are justified.

● Discrimination between classes of traffic for the sake of network management should only be permissible if:

○ there is an intelligible differentia between the classes which are to be treated differently, and

○ there is a rational nexus between the differential treatment and the aim of such differentiation, and

○ the aim sought to be furthered is legitimate, and is related to the security, stability, or efficient functioning of the network, or is a technical limitation outside the control of the ISP^{^[33]}, and

○ the network management practice is the least harmful manner in which to achieve the aim.

● Provision of specialized services (i.e., "fast lanes") is permitted if and only if it is shown that

○ The service is available to the user only upon request, and not without their active choice, and

○ The service cannot be reasonably provided with "best efforts" delivery guarantee that is available over the Internet, and hence requires discriminatory treatment, or

○ The discriminatory treatment does not unduly harm the provision of the rest of the Internet to other customers.

These principles are only applicable at the level of ISPs, and not on access gateways for institutions that may in some cases be run by ISPs (such as a university network, free municipal WiFi, at a work place, etc.), which are not to be regulated as common carriers.

These principles may be applied on a case-by-case basis by a regulator, either suo motu or upon complaint by customers.

^{^[1]} Report of the Special Rapporteur on the Promotion and Protection of the right to freedom of opinion and expression, (19 May 2011), http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf.

^{^[2]} Available at http://www.trai.gov.in/WriteReadData/userfiles/file/NTP%202012.pdf.

^{^[3]} IAMAI, India to Cross 300 million internet users by Dec 14, (19 November, 2014), http://www.iamai.in/PRelease_detail.aspx?nid=3498&NMonth=11&NYear=2014.

^{^[4]} World Economic Forum, The Global Information Technology Report 2015, http://www3.weforum.org/docs/WEF_Global_IT_Report_2015.pdf.

^{^[5]} http://www.ictregulationtoolkit.org/4.1#s4.1.1

^{^[6]} See R.U.S. Prasad, The Impact of Policy and Regulatory Decisions on Telecom Growth in India (July 2008), http://web.stanford.edu/group/siepr/cgi-bin/siepr/?q=system/files/shared/pubs/papers/pdf/SCID361.pdf.

^{^[7]} 1973 AIR 106

^{^[8]} 1962 AIR 305

^{^[9]} "When ISPs go beyond their traditional use of IP headers to route packets, privacy risks begin to emerge." Alissa Cooper, How deep must DPI be to incur privacy risk? http://www.alissacooper.com/2010/01/25/how-deep-must-dpi-be-to-incur-privacy-risk/

^{^[10]} Richard T.B. Ma & Vishal Misra, The Public Option: A Non-Regulatory Alternative to Network Neutrality, http://dna-pubs.cs.columbia.edu/citation/paperfile/200/netneutrality.pdf

^{^[11]} Mobile number portability was launched in India on January 20, 2011 in the Haryana circle. See http://indiatoday.intoday.in/story/pm-launches-nationwide-mobile-number-portability/1/127176.html . Accessed on April 24, 2015.

^{^[12]} For a comprehensive list of all TRAI interconnection regulations & subsequent amendments, see http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[13]} See Telecommunication Interconnection Usage Charges (Eleventh Amendment) Regulations, 2015 (1 of 2015), available at http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[14]} Article 30 of the Universal Service Directive, Directive 2002/22/EC.

^{^[15]} See Telecommunication Mobile Number Portability (Sixth Amendment) Regulations, 2015 (3 of 2015), available at http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[16]} The Telecommunication (Broadcasting and Cable) Services (Seventh) (The Direct to Home Services) Tariff Order, 2015 (2 of 2015).

^{^[17]} Section 8, Cable Television Networks Act, 1995.

^{^[18]} TRAI writes new rules for Cable TV, Channels, Consumers, REAL TIME NEWS, (August 11, 2014), http://rtn.asia/rtn/233/1220_trai-writes-new-rules-cable-tv-channels-consumers.

^{^[19]} An initial requirement for all multi system operators to have a minimum capacity of 500 channels was revoked by the TDSAT in 2012. For more details, see http://www.televisionpost.com/cable/msos-not-required-to-have-500-channel-headends-tdsat/.

^{^[20]} Aparna Ghosh, Bharti SoftBank Invests $14 million in Hike, LIVE MINT, (April 2, 2014), http://www.livemint.com/Companies/nI38YwQL2eBgE6j93lRChM/Bharti-SoftBank-invests-14-million-in-mobile-messaging-app.html.

^{^[21]} Mike Masnick, Can We Kill This Ridiculous Shill-Spread Myth That CDNs Violate Net Neutrality? They Don't, https://www.techdirt.com/articles/20140812/04314528184/can-we-kill-this-ridiculous-shill-spread-myth-that-cdns-violate-net-neutrality-they-dont.shtml.

^{^[22]} Mathew Carley, What is Hayai's stance on "Net Neutrality"?, https://www.hayai.in/faq/hayais-stance-net-neutrality?c=mgc20150419

^{^[23]} Helani Galpaya & Shazna Zuhyle, South Asian Broadband Service Quality: Diagnosing the Bottlenecks, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1979928

^{^[24]} DTH players told to offer pay channels on la carte basis, HINDU BUSINESS LINE (July 22, 2010), http://www.thehindubusinessline.com/todays-paper/dth-players-told-to-offer-pay-channels-on-la-carte-basis/article999298.ece.

^{^[25]} The Telecommunication (Broadcasting and Cable) Services (Fourth) (Addressable Systems) Tariff Order, 2010.

^{^[26]} These suggestions were provided by Helani Galpaya and Sunil Abraham, based in some cases on existing practices.

^{^[27]} This is what is being followed by the Jana Loyalty Program: http://www.betaboston.com/news/2015/05/06/with-a-new-loyalty-program-mobile-app-marketplace-jana-pushes-deeper-into-the-developing-world/

^{^[28]} Example: free Internet access at low speeds, with data caps.

^{^[29]} Example: special "packs" for specific services like WhatsApp.

^{^[30]} Example: zero-rating of all locally-peered settlement-free traffic.

^{^[31]} Example: "leaky" walled gardens, such as the Jana Loyalty Program that provide limited access to all of the Web alongside access to the zero-rated content.

^{^[32]} Example: Wikipedia Zero.

^{^[33]} A CGNAT would be an instance of such a technology that poses network limitations.

For more details visit https://cis-india.org/internet-governance/blog/regulatory-perspectives-on-net-neutrality

Regulation, misuse concerns still dog DNA profiling bill

praskrishna — 2015-09-13T08:32:48Z

Experts fear such data could be used for non-forensic purposes and are concerned about the vast powers to be vested in proposed DNA profiling board.

The article by Nikita Mehta was published in Livemint on July 29, 2015. Sunil Abraham gave his inputs.

A bill aimed at creating a DNA database of offenders, slated for introduction in the monsoon session of Parliament, has been criticized by experts who fear that such information could be used for non-forensic purposes and are concerned about the vast powers sought to vested in a proposed DNA profiling board.

Despite changes made by the Department of Biotechnology, the final draft of the Human DNA Profiling Bill 2015 has drawn flak from the Centre for Internet and Society (CIS), a non-profit group that works on policy issues.

The bill seeks Parliament’s approval for plans to create a DNA bank of various offenders in order to prevent repeat offences and to regulate the process by defining infrastructure, training, qualifications, facilities and legalities.

The government says that conducting DNA analysis involves working with sensitive information which, if misused, can cause harm to a person or to society. There is, thus, a need to restrict the use of DNA profiles through an Act of Parliament only for lawful purposes of establishing someone’s identity in a criminal or civil case and for other specified purposes.

The bill seeks to establish standards for laboratories, staff qualifications, training, proficiency testing, collection of body substances, custody trail from collection to reporting and a data bank with policies of use and access to information, its retention and deletion.

The offences for which the database can be maintained range from criminal and civil offences to paternity disputes.

“We need this bill because there are so many unresolved cases. A judge can use this data as material evidence and speedy justice can be served,” said M.K. Bhan, former secretary of the department of biotechnology. “Tremendous amount of effort has been taken to consult all possible parties and the bill has been drafted and redrafted over the years,” Bhan added.

In its note of dissent, CIS raised objections about DNA profiling and DNA samples being used for identifying victims of accidents or disasters, for missing persons and in civil disputes. It also objected to the creation and maintenance of a population statistics databank that is to be used, as prescribed, for the purposes of identification.

“One problem is accuracy. Unlike comparisons between digital signatures which can either have matches or no matches, biometric signatures will have a level of accuracy, so there can be a few false matches. Hence unnecessary widening of the data will reduce the accuracy of this system,” said Sunil Abraham, executive director at CIS.

CIS further noted that a DNA Profiling Board proposed by the bill will have vast powers, including those of authorizing procedures for DNA profiling for civil and criminal investigation, drawing up a list of instances for the application of human DNA profiling and undertaking any other activity which in the opinion of the Board advances the purposes of the Act. The DNA Profiling Board will consist of eminent scientists, administrators and law enforcement officers who will administer and carry out other functions assigned to it under the Act.

“Usually when regulators are created, the mandate is extremely clear. In this bill it is quite vague and there should not be so many things left to the discretionary powers of the board,” said Abraham who was part of the consultation process for the bill. He added that a number of changes have been introduced to the bill, including reduction of powers of the board, tighter definitions and more privacy safeguards.

“Any regulatory system requires external auditing, that should be taken into view. Another issue that was being looked at was that the forensic system should be outside police jurisdiction as they may have vested interests,” Bhan said.

The CIS note pointed out that although the bill refers to security and privacy procedures that labs are to follow, these have been left to be drawn up and implemented by the proposed DNA Board.

“This proposal has been doing the rounds for years and I can vouch for the scientific infallibility of using DNA profiling for carrying out justice. That being said, the bill does not provide verifiable or implementable safeguards for misuse of this data and lack of accountability of public servants can cause serious jeopardy to the privacy of citizens,” said K.P.C. Gandhi, a forensic scientist and founder chairman at Truth Labs, an independent forensic science laboratory.

For more details visit https://cis-india.org/internet-governance/news/livemint-nikita-mehta-july-29-2015-regulation-misuse-concerns-still-dog-dna-profiling-bill

Regulating the Internet: The Government of India & Standards Development at the IETF

Aayush Rathi, Gurshabad Grover and Sunil Abraham — 2019-01-22T07:29:39Z

The institution of open standards has been described as a formidable regulatory regime governing the Internet. Given the regulatory and domestic policy implications that technical standards can have, there is a need for Indian governmental agencies to focus adequate resources geared towards achieving favourable outcomes at standards development fora.

This brief was authored by Aayush Rathi, Gurshabad Grover and Sunil Abraham. Click here to download the policy brief.

Executive Summary

The institution of open standards has been described as a formidable regulatory regime governing the Internet. As the Internet has moved to facilitate commerce and communication, governments and corporations find greater incentives to participate and influence the decisions of independent standards development organisations.

While most such bodies have attempted to systematise fair and transparent processes, this brief highlights how they may still be susceptible to compromise. Documented instances of large private companies like Microsoft, and governmental instrumentalities like the US National Security Agency (NSA) exerting disproportionate influence over certain technical standards further the case for increased Indian participation.

The debate around Transport Layer Security (TLS) 1.3 at the Internet Engineering Task Force (IETF) forms an important case for studying how a standards body responded to political developments, and how the Government of India participated in the ensuing discussions. Lasting four years, the debate ended in favour of greater communications security. One of the security improvements in TLS 1.3 over its predecessor is that is makes less information available to networking middleboxes. Considering that Indian intelligence agencies and government departments have expressed fears of foreign-manufactured networking equipment being used by foreign intelligence to eavesdrop on Indian networks, the development is potentially favourable for the security of Indian communication in general, and the security of military and intelligence systems in particular. India has historically procured most networking equipment from foreign manufacturers. While there have been calls for indigenised production of such equipment, achieving these objectives will necessarily be a gradual process. Participating in technical standards can, then, be an effective interim method for intelligence agencies, defence wings and law enforcement for establishing trust in critical networking infrastructure sourced from foreign enterprises.

Outlining some of the existing measures the Indian government has put in place to build capacity for and participate in standard setting, this brief highlights that while these are useful starting points, they need to be harmonised and strengthened to be more fruitful. Given the regulatory and domestic policy implications that technical standards can have, there is a need for Indian governmental agencies to focus adequate resources geared towards achieving favourable outcomes at standards development fora.

Click here to download the policy brief.

Note: The recommendations in the brief were updated on 17 December 2018 to reflect the relevance of technical standard-setting in the recent discussions around Indian intelligence concerns about foreign-manufactured networking equipment.

For more details visit https://cis-india.org/internet-governance/blog/regulating-the-internet-the-government-of-india-standards-development-at-the-ietf

Regulating the Internet by fiat

praskrishna — 2012-08-26T10:13:03Z

The Union government’s move to ban or block 310 online entities is worrisome.

This article by V Sridhar was published in the Hindu on August 26, 2012. Pranesh Prakash is quoted.

The unprecedented spike in the velocity of hateful, offensive and blatantly communal online content earlier this month, which reinforced rumour mongering on the ground that resulted in the exodus of people from the northeast from several Indian cities has been a classic example of how new technologies can be harnessed for old vices. But just as disturbing has been the manner in which the government yielded to the old itch of censoring, banning or blocking content. Between August 18 and August 21, the Department of Telecommunications (DoT), in four separate directives issued to all Internet service licensees, asked them to “block access” to a total of 310 URLs (Unique Resource Locators).

Directing ISPs

The number of URLs blocked does not quite convey the extent of the banned content because the list includes instances of entire websites, a single Web page in some cases, videos posted on YouTube, Twitter handles, Facebook entries, or even instances of links that would take the browser to an img tag (an individual image that is linked to an HTML page). Although the directives clearly stated that the service providers should block only the specific URLs leading to the main sites such as YouTube, Facebook or Twitter.

Airtel, the leading telecom and Internet service provider, blocked youtu.be, the short URL that Twitter and Facebook users normally use for sharing images and videos. A perusal of the four orders clearly shows that Airtel overreacted. Although the service provider subsequently corrected the error, worries about arbitrary disruptions remain.

Pranesh Prakash, Programme Manager, Centre for Internet and Society (CIS), who did the first analysis of the resources that were pulled out of the Web, said the list was only partial, because they related only to the URLs that ISPs were asked to block, not what action would have been initiated against those offering Web services.

A ragtag list

Net activists, even those who do not have an absolutist notion of the right to free speech, have expressed deep reservations about the manner in which the government has blocked 310 URLs. Although Mr. Prakash, who is also a lawyer, believes that “temporary curbs” of freedom of expression, in situations such as the unprecedented situation earlier this month may be necessary, he argued that the government acted carelessly and in a kneejerk manner. “It is a ragtag list, prepared in a haphazard manner,” he told The Hindu.

Logically, the rules applicable to hate content ought to be the same whether the offence is in print or whether it appears as online content. Mr. Prakash pointed to the fact that official agencies such as the police have not gone after those responsible for the content posted in the blocked URLs, which shows that the government’s approach is not backed by a resolve to bring to book those responsible for spreading hate.

The ban-first, examine-later approach is wrong for three sets of reasons, argued Mr. Prakash. First, because there are what he characterises as “egregious mistakes”. Second, he doubts whether regulations prescribing due process of enforcing and reviewing the ban were indeed followed. Third, the government ought to have acted smarter, by using the same media to debunk the rumours that were swirling in several Indian cities but also in the northeast. Mr. Prakash pointed to the case of a Canadian intern working at the CIS who received an SMS from a Canadian government agency that asked her not to heed the rumours. Although the Bangalore police did issue an SMS asking people not to heed such rumours, it came well after the rumour mongering had passed its peak.

“I generally believe that the government must exercise utmost caution in censoring,” said Mr. Prakash. He pointed out that in the list were sites and people who had done nothing to promote hate. He refered to the case of Amit Paranjpe, whose twitter handles were blocked. “If you go through his timeline, you will not find anything that is communal at all,” Mr. Prakash says. “I do not think the government acted responsibly by going after material that is not directly inflammatory, or contributes to the state of panic,” he argued. “I do not doubt the motives of the government, because I see that the overwhelming majority of the material it has blocked is stuff that has something to do with communalism or rioting, whether it is as reportage or as material that contributes to tension,” he observed. He also did not think the government used the crisis as an excuse to put down politically dissenting voices, which was what happened last October (critical references to Sonia Gandhi were removed then).

Cyber terror?

Significantly, the list of blocked domains did not match the government’s claim that a lot of the hate content were in the form of images with misleading captions, most of which came from Pakistan. Mr. Prakash pointed out that many of these images had “been floating around” in Pakistan for at least a month before the rumours hit their peak in mid-August. He noted that within Pakistan there had been debates about the authenticity of these images. “In fact, the reportage and the countering of the reportage in the Pakistani media has been much more sophisticated than in India,” he observed. Significantly, the debate was not even targeted at the Indian audience, but to Pakistani or a global audience. “This debunks the notion some sections of the media have propagated, that this is about cyber war or cyber terrorism,” he says. “I have not seen evidence that India has been targeted from Pakistan,” he observed.

Lack of transparency

It has also been done without abiding by the procedures that are clearly laid down. Mr. Prakash pointed out, the provisions of the Information Technology Act require that “persons or intermediaries” blocked ought to have been given an opportunity to explain their position within 48 hours. He doubted that this had been followed. Moreover, he argued that the people or companies hosting the offensive content, not the ISPs, ought to have been asked to remove them. After all, most of the large and popular intermediaries have clearly laid down conditions of usage, he said.

The lack of transparency in the manner in which the government blocked these websites — even if it is accepted that the content was hateful, abhorrent and aimed at stirring social tension — is worrisome because it sets a precedent for unchecked use of power, without proper sanction. Nor was it a smart way of addressing an innovatively virulent way of spreading chaos. While the government’s use of the sledgehammer may have got it out of the immediate crisis it found itself in, it may have fewer friends when faced with a similar outbreak later.

For more details visit https://cis-india.org/news/www-the-hindu-aug-26-v-sridhar-regulating-the-internet-by-fiat

Regulating Social Media: Unrealistic, Impossible, Necessary?

praskrishna — 2013-04-30T16:50:13Z

The Press Council of India Chairperson Justice Markandey Katju calls for regulating social media, saying it will prevent offensive material coming into the public domain. But is it really necessary to regulate the social media? If yes, is it possible to do it?

This was published by NDTV on April 11, 2013.

NDTV aired a discussion by Ashwin S Kumar, Co-editor, Columnist, The Unreal Times; Kunal Majumder, Assitant Editor, Tehelka.com and Pranesh Prakash, Policy Director, Centre for Internet and Society on April 11, 2013 in response to Justice Katju's comments on bringing 'social media' under the Press Council of India.

Pranesh Prakash laid out four brief points:

'Social media' allows coffee house discussion and toilet wall scrawls to seem like print publications, but it's a mistake to treat it the same way we do print publications. The UK is now planning on using prosecutorial flexibility to refrain from prosecuting simple offensive speech on social media.
The same laws should apply online as they do offline (but how the apply, can differ), and that is currently the case. Most content-related offences in the IPC, etc., are offences online as well as offline.
Editors and journalists exist for most print publications and broadcast programmes, while that isn't true for most 'social media'. So guidelines applicable to the press mostly won't be applicable online.
Electronic publications (like Medianama, The Daily Dish, Huffington Post) which consider themselves engaged in a journalistic venture present a special problem that we do need to have a public conversation about.

Video

For more details visit https://cis-india.org/news/ndtv-video-april-11-2013-the-social-network-regulating-social-media-unrealistic-impossible-necessary