Access at the cost of Net neutrality?

The article by Suhrith Parthasarathy was published in the Hindu on October 8, 2015. Pranesh Prakash gave inputs.

Earlier this year, the social media giant, Facebook, formalised a partnership with Reliance Communications that enabled the Indian company to provide access to over 30 different websites, without any charge on mobile data accruing to the ultimate user. The platform, originally known as “Internet.org,” has now been rebranded as “Free Basics,” Facebook announced last month. Its fundamental ethos, though, remains unchanged. It allows Reliance’s subscribers to surf completely free of cost a bouquet of websites covered within the scheme, which includes, quite naturally, facebook.com. Mark Zuckerberg, Facebook’s founder, views this supposed initiative as a philanthropic gesture, as part of a purported, larger aim to bring access to the Internet to those people who find the costs of using generally available mobile data prohibitive.

Neutrality, an interpretive concept
On the face of it, this supposed act of altruism appears to be commendable. But, there are many critics — some of whom have come together to launch a website “savetheinternet.in” with a view to defending Internet freedom — who argue that Free Basics violates what has come to be known as the principle of network (or Net) neutrality.

While it is clear to all of us that a notion of Net neutrality involves some regulation of the Internet, it is less clear what the term actually means. Like any phrase that involves either a moral or a legal obligation, Net neutrality is also an interpretive concept. People who employ the term to denote some sort of binding commitment, or at the least an aspirational norm, often tend to disagree over precisely how the idea ought to be accomplished. Tim Wu — an American lawyer and presently a professor at the Columbia University — who coined the term, views the notion of Net neutrality as signifying an Internet that does not favour any one application over another. In other words, the idea is to ensure that Internet service providers do not discriminate content by either charging a fee for acting as its carrier or by incorporating any technical qualifications.

In India, there is no law that expressly mandates the maintenance of a neutral Internet. This March, the Telecom Regulatory Authority of India (TRAI) released a draft consultation paper seeking the public’s views on whether the Internet needed regulation. Unfortunately, much of its attention was focussed on the supposedly pernicious impact of applications such as WhatsApp and Viber. “In a multi-ethnic society there is a vital need,” wrote TRAI, “to ensure that the social equilibrium is not impacted adversely by communications that inflame passions, disturb law and order and lead to sectarian disputes.” The questions, therefore, in its view were these: should at least some Internet applications be amenable to a greater regulation, and should they compensate the telecom service providers in addition to the data charges that the consumers pay directly for the use of mobile Internet?

If the government eventually answers these questions in the affirmative, the consequences could be drastic. It could lead to a classification of Internet applications based on arbitrary grounds, by bringing some of them, whom the government views as harmful to society in some manner or another, within its regulatory net. Through such a move, the state, contrary to helping establish principles of Net neutrality as a rule of law, would be actively promoting an unequal Internet.

In any event, as things stand, in the absence of a specific law mandating a neutral Internet, telecom companies enjoy a virtual carte blanche to discriminate between different applications. Though these companies have not yet completely exploited this autonomy, they are certainly proceeding towards such an exercise. In April this year, Airtel announced Airtel Zero, an initiative that would allow applications to purchase data from Airtel in exchange for the telecom company offering them to consumers free of cost.

On the face of it, this programme appears opposed to Net neutrality. But what is even more alarming is that mobile Internet service providers could, in the future, plausibly also control the speeds at which different applications are delivered to consumers. For example, if WhatsApp were to subscribe to Airtel Zero by paying the fee demanded by the company, Airtel might accede to offering WhatsApp to consumers at a pace superior to that at which other applications are run. This kind of discrimination, as Nikhil Pahwa, one of the pioneers of the Save The Internet campaign, has argued, is prototypically opposed to Net neutrality. It tends to breed an unequal playing field, and, if allowed to subsist, it could create a deep division in the online world. Ultimately, we must view Net neutrality as a concept that stands for the values that we want to build as a society; it pertains to concerns about ensuring freedom of expression and about creating an open space for ideas where democracy can thrive. There is a tendency, though, to view those who support Net neutrality as representing a supercilious position. Such criticism is unquestionably blinkered, but it also highlights certain telling concerns.

Telecom companies that wish to discriminate between applications argue that in the absence of an Internet that has completely permeated all strata of society, an obligation to maintain neutrality is not only unreasonable on the companies, but also unfair on the consumer. After all, if nothing else, Airtel Zero and Free Basics bring, at the least, some portions of the Internet to people who otherwise have no means to access the web. What we have, therefore, at some level, is a clash of values: between access to the Internet (in a limited form) and the maintenance of neutrality in an atmosphere that is inherently unequal. This makes tailoring a solution to the problem a particularly arduous process.

The Internet, in its purest form, is a veritable fountain of information. At its core lies a commitment to both openness and a level playing field, where an ability to innovate is perennially maintained. It is difficult to argue against Facebook when it says that some access is better than no access at all. But one of the problems with Free Basics, and indeed with Airtel Zero too, is that the consumer has no choice in which websites he or she might want to access free of cost. If this decision is made only by Facebook, which might argue that it gives every developer an equal chance to be a part of its project as long as it meets a certain criteria, what we have is almost a paternalistic web. In such a situation, information, far from being free, is shackled by constraints imposed by the service provider.

Laudable end, unethical means
This is precisely one of the concerns raised by those arguing in favour of Net neutrality, who, it is worth bearing in mind, aren’t resistant to the idea of a greater penetration of the Internet. Their apprehensions lie in companies resorting to what they believe is an unethical means to achieving, at least in theory, a laudable end. According to them, negating Net neutrality, in a bid to purportedly achieve greater access to the Internet in the immediate future, could prove profoundly injurious in the long run. Yes, Airtel Zero and Free Basics would bring to the less-privileged amongst us some access to the Internet, but the question is this: at what cost?

The worry is that if the programs that bring access to a part of the Internet in the immediate future were to entrench themselves, it could eventually lead to these telecom companies abusing their dominant positions. No doubt, as Pranesh Prakash, policy director at the Centre for Internet and Society, has argued, it might require a deeper analysis to argue convincingly that packages such as Free Basics and Airtel Zero require immediate invalidation in their present forms; significantly, the former does not demand payments from the applications while the latter is premised on such consideration. But, viewed holistically, the companies’ actions could potentially be characterised as a form of predatory pricing, where consumers might benefit in the short run, only for serious damage to ensue to competition in the long run.

It is, therefore, necessary that any debate on the issue must address the tension between the two apparently conflicting goals — the importance of maintaining a neutral Internet and the need to ensure a greater access to the web across the country. Mr. Zuckerberg argues that these two values are not fundamentally opposed to each other, but can — and must — coexist. He is possibly correct at a theoretical level.

But the history of markets tells us that we have to be very careful in allowing predatory practices, devised to achieve short-term goals, to go unbridled. As citizens, each of us has a fundamental right to freedom of speech and expression. If we were to get the balance between these two values wrong, if we were to allow the domination, by a few parties, of appliances that facilitate a free exchange of ideas, in a manner that impinges on the Internet’s neutrality, our most cherished civil liberties could well be put to grave danger.

(Suhrith Parthasarathy is an advocate in the Madras High Court.)