Centre for Internet and Society

Net subs grow significantly but public Wi-Fi idea flayed

praskrishna — 2016-11-21T13:55:18Z

Even as internet subscribers are growing significantly across Indian states, TRAI's idea of public Wi-Fi has been flayed by stakeholders.

This was published by Indian Television on November 21, 2016. Pranesh Prakash was quoted.

Maharashtra has recorded the highest number of internet subscribers in India at 29.47 million, followed by Tamil Nadu, Andhra and Karnataka in that order, according to government data. At the end of March 2016, India had a total of 342.65 million subscribers. BharatNet project meantime plans to connect all 2.5 lakh gram panchayats in the country through broadband.

Delhi had registered 20.59 million internet users, while Kolkata and Mumbai recorded 9.26 million and 15.65 million, respectively.

Tamil Nadu recorded 28.01 million subscribers, while the neighbouring states of Andhra Pradesh and Karnataka respectively registered 24.87 million and 22.63 million. Himachal Pradesh saw the lowest number of subscribers at 3.02 million.

Of the over 342 million subscribers, over 67 per cent are from urban India. At the end of FY16, the rural internet subscriber base stood at 111.94 million. Tamil Nadu recorder the highest number of urban subscribers at 21.16 million, while UP (East) telecom circle is ahead in terms of rural internet customer base at 11.21 million.

Public Wi-Fi condemned

Telecom stakeholders recommending an open and cheap internet have raised concerns over privacy and regulatory hurdles following the release of TRAI's consultation paper on public Wi-Fi.

The Internet Freedom Foundation co-founder Aravind Ravi Sulekha was apprehensive that the proposed regulations could lead to invasion of privacy and interfere with the freedom of hotspot providers to operate freely. The proposals may turn out to be regressive, Sulekha said.

TRAI proposed hotspot providers would have to register with the government and users could access hotspots only after paying using a service tied to their Aadhaar number.

Centre for Internet and Society policy director Pranesh Prakash said that TRAI solution was a classic example of over-regulation and centralism. It turns out that TARI was unclear about the problem to be solved, he added.

For more details visit https://cis-india.org/telecom/news/indian-television-november-21-2016-net-subs-grow-significantly-but-public-wifi-idea-delayed

Net neutrality: Trai receives over 2 lakh mails

praskrishna — 2015-05-08T02:11:15Z

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Net Neutrality: The argument continues

praskrishna — 2015-05-09T11:35:23Z

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

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

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

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

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

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

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

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

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

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

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

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

Net neutrality: Net activism packs a punch

praskrishna — 2015-05-09T09:02:03Z

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

gautam — 2014-05-27T10:21:24Z

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Net Neutrality, Free Speech and the Indian Constitution - II

gautam — 2014-04-29T07:42:40Z

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

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

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

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

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

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

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

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

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

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

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

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

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

Net Neutrality, Free Speech and the Indian Constitution - I

gautam — 2014-04-29T08:03:57Z

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Net neutrality debate rages

praskrishna — 2015-05-08T14:45:34Z

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

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

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

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

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

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

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

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

No such plans: Snapdeal

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

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

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

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

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

Start-ups for net neutrality:

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

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

Sameer Parwani, CEO & Founder, CouponDunia

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

Kashyap Vadapalli, Chief Marketing officer, Pepperfry

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

Yogendra Vasupal, Founder of Stayzilla

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

Ritesh Agarwal, CEO, OYO Rooms

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

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

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

praskrishna — 2015-05-09T08:01:20Z

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Net Neutrality and the Law of Common Carriage

bhairav — 2015-08-23T11:06:26Z

For more details visit https://cis-india.org/internet-governance/blog/net-neutrality-law-of-common-carriage.pdf

Net Neutrality and the Law of Common Carriage

bhairav — 2015-08-23T11:09:04Z

Net neutrality makes strange bedfellows. It links the truck operators that dominate India’s highways, such as those that carry vegetables from rural markets to cities, and Internet service providers which perform a more technologically advanced task.

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Over the last decade, the truckers have opposed the government’s attempts to impose the obligations of common carriage on them, this has resulted in strikes and temporary price rises; and, in the years ahead, there is likely to be a similar – yet, technologically very different – debate as net neutrality advocates call for an adapted version of common carriage to bind Internet services.

Net neutrality demands a rigorous examination that is not attempted by this short note which, constrained by space, will only briefly trace the law and policy of net neutrality in the US and attempt a brief comparison with the principles of common carriage in India. Net neutrality defies definition. Very simply, the principle demands that Internet users have equal access to all content and applications on the Internet. This can only be achieved if Internet service providers: (i) do not block lawful content; (ii) do not throttle – deliberately slow down or speed up access to selected content; (iii) do not prioritise certain content over others for monetary gain; and, (iv) are transparent in their management of the networks by which data flows.

Almost exactly a year ago, the District of Columbia Circuit Court of Appeals – a senior court below the US Supreme Court – struck down portions of the ‘Open Internet Order’ that was issued by the Federal Communications Commission (FCC) in 2010. Although sound in law, the Court’s verdict impeded net neutrality to raise crucial questions regarding common carriage, free speech, competition, and others. More recently, Airtel’s announcement of its decision to charge certain end-users for VoIP services – subsequently suspended pending a policy decision from the Telecom Regulatory Authority of India (TRAI) – has fuelled the net neutrality debate in India.

Because of its innovative technological history in relation to the Internet, the US has pioneered many legal attempts to regulate the Internet in respect of net neutrality. In 1980, when Internet data flowed through telephone lines, the FCC issued the ‘Computer II’ regime which distinguished basic services from enhanced services. The difference between the two turned on the nature of the transmission. Regular telephone calls involved a pure transmission of data and were hence classified as basic services. On the other hand, access to the Internet required the processing of user data through computers; these were classified as enhanced services. Importantly, because of their essential nature, the Computer II rules bound basic services providers to the obligations of common carriage whereas enhanced services providers were not.

What is common carriage? Common law countries share a unique heritage in respect of their law governing the transport of goods and people. Those that perform such transport are called carriers. The law makes a distinction between common carriers and other carriers. A carrier becomes a common carrier when it “holds itself out” to the public as willing to transport people or goods for compensation. The act of holding out is simply a public communication of an offer to transport, it may be fulfilled even by an advertisement. The four defining elements of a common carrier are (i) a holding out of a willingness (a public undertaking) (ii) to transport persons or property (iii) from place to place (iv) for compensation.

Common carriers discharge a public trust. By virtue of their unique position and essential function, they are required to serve their customers equally and without discrimination. The law of carriage of goods and people places four broad duties upon common carriers. Firstly, common carriers are bound to carry everyone’s goods or all people and cannot refuse such carriage unless certain strict conditions are met. Secondly, common carriers must perform their carriage safely without deviating from accepted routes unless in exceptional circumstances. Thirdly, common carriers must obey the timeliness of their schedules, they must be on time. And, lastly, common carriers must assume liabilities for the loss or damages of goods, or death or injuries to people, during carriage.

The Computer II regime was issued under a telecommunications law of 1934 which retained the classical markers and duties of common carriers. The law extended the principles of common carriage to telephone services providers. In 1980, when the regime was introduced, the FCC did not invest Internet services with the same degree of essence and public trust; hence, enhanced services escaped strict regulation. However, the FCC did require that basic services and enhanced services be offered through separate entities, and that basic services providers that operated the ‘last-mile’ wired transmission infrastructure to users offer these facilities to enhanced services providers on a common carrier basis.

In 1996, the new Telecommunications Act revisited US law after more than sixty years. The new dispensation maintained the broad structure of the Computer II regime: it recognised telecommunications carriers in place of basic services providers, and information-services providers in place of enhanced services. Carriers in the industry had already converged telephone and Internet communications as a single service. Hence, when a user engaged a carrier that provided telephone and broadband Internet services, the classification of the carrier would depend on the service being accessed. When a carrier provided broadband Internet access, it was an information-services provider (not a telecommunications carrier) and vice versa. Again, telecommunications carriers were subjected to stricter regulations and liability resembling common carriage.

In 1998, the provision of broadband Internet over wired telephone lines through DSL technologies was determined to be a pure transmission and hence a telecommunications service warranting common carriage regulation. However, in 2002, the FCC issued the ‘Cable Broadband Order’ that treated the provision of cable broadband through last-mile wired telephone transmission networks as a single and integrated information service. This exempted most cable broadband from the duties of common carriage. This policy was challenged in the US Supreme Court in 2005 in the Brand X case and upheld.

Significantly, the decision in the Brand X case was not made on technological merits. The case arose when a small ISP that had hitherto used regular telephone lines to transmit data wanted equal access to the coaxial cables of the broadcasting majors on the basis of common carriage. Instead of making a finding on the status of cable broadband providers based on the four elements of common carriage, the Court employed an administrative law principle of deferring to the decisions of an expert technical regulator – known as the Chevron deference principle – to rule against the small ISP. Thereafter wireless and mobile broadband were also declared to be information services and saved from the application of common carriage law.

Taking advantage of this exemption from common carriage which released broadband providers from the duty of equal access and anti-discrimination, Comcast began from 2007 to degrade P2P data flows to its users. This throttling was reported to the FCC which responded with the 2008 ‘Comcast Order’ to demand equal and transparent transmission from Comcast. Instead, Comcast took the FCC to court. In 2010, the Comcast Order was struck down by the DC Circuit Court of Appeals. And, again, the decision in the Comcast case was made on an administrative law principle, not on technological merits.

In the Comcast case, the Court said that as long as the FCC treated broadband Internet access as an information service it could not enforce an anti-discrimination order against Comcast. This is because the duty of anti-discrimination attached only to common carriers which the FCC applied to telecommunications carriers. Following the Comcast case, the FCC began to consider reclassifying broadband Internet providers as telecommunications carriers.

However, in the 2010 ‘Open Internet Order’, the FCC attempted a different regulatory approach. Instead of a classification based on common carriage, the new rules recognised two types of Internet service providers: (i) fixed providers, which transmitted to homes, and, (ii) mobile providers, which were accessed by smartphones. The rules required both types of providers to ensure transparency in network management, disallowed blocking of lawful content, and re-imposed the anti-discrimination requirement to forbid prioritised access or throttling of certain content.

Before they were even brought into effect, Verizon challenged the Open Internet Order in the same court that delivered the Comcast judgement. The decision of the Court is pending. Meanwhile, in India, Airtel’s rollback of its announcement to charge its pre-paid mobile phone users more for VoIP services raises very similar questions. Like the common law world, India already extends the principles of common carriage to telecommunications. Indian jurisprudence also sustains the distinction between common carriage and private carriage, and applies an anti-discrimination requirement to telecommunications providers through a licensing regime.

TRAI must decide if it wants to continue this distinction. No doubt, the provision of communications services through telephone and the Internet serves an eminent public good. It was on this basis that President Obama called on the FCC to reclassify broadband Internet providers as common carriers. Telecommunications carriers, such as Airtel, might argue that they have expended large sums of money on network infrastructure that is undermined by the use of high-bandwidth free VoIP applications, and that the law of common carriage must recognise this fact. And still others call for a new approach to net neutrality outside the dichotomy of common and private carriage. Whatever the solution, it must be reached by widespread engagement and participation, for Internet access – as the government’s Digital India project is aware – serves public interest.

For more details visit https://cis-india.org/internet-governance/blog/net-neutrality-and-law-of-common-carriage

Net Neutrality Advocates Rejoice As TRAI Bans Differential Pricing

subha — 2016-02-23T02:10:42Z

India would not see any more Free Basics advertisements on billboards with images of farmers and common people explaining how much they benefited from this Facebook project.

The article by Subhashish Panigrahi was published by Odisha TV on February 9, 2016.

Because the Telecom Regulatory Authority of India (TRAI) has taken a historical step by banning differential pricing without discriminating services. In their notes TRAI has explained, “In India, given that a majority of the population are yet to be connected to the internet, allowing service providers to define the nature of access would be equivalent of letting TSPs shape the users’ internet experience.” Not just that, violation of this ban would cost Rs. 50,000 every day.

Facebook planned to launch Free Basics in India by making a few websites – mostly partners with Facebook—available for free. The company not just advertised aggressively on bill boards and commercials across the nation, it also embedded a campaign inside Facebook asking users to vote in support of Free Basics. TRAI criticized Facebook’s attempt to manipulate public opinion. Facebook was also heavily challenged by many policy and internet advocates including non-profits like Free Software Movement of India and Savetheinternet.in campaign. The two collectives strongly discouraged Free Basics by moulding public opinion against it with Savetheinternet.in alone used to send over 2.4 million emails to TRAI to disallow Free Basics. Furthermore, 500 Indian start-ups, including major names like Cleartrip, Zomato, Practo, Paytm and Cleartax, also wrote to India’s Prime Minister Narendra Modi requesting continued support for Net Neutrality – a concept that advocates equal treatment of websites – on Republic Day. Stand-up comedians like Abish Mathew and groups like All India Bakchod and East India Comedy created humorous but informative videos explaining the regulatory debate and supporting net neutrality. Both went viral.

Technology critic and Quartz writer Alice Truong reacted to Free Basics saying; “Zuckerberg almost portrays net neutrality as a first-world problem that doesn’t apply to India because having some service is better than no service.”

The decision of the Indian government has been largely welcomed in the country and outside. In support of the move, Web We Want programme manager at the World Wide Web Foundation Renata Avila has said; “As the country with the second largest number of Internet users worldwide, this decision will resonate around the world. It follows a precedent set by Chile, the United States, and others which have adopted similar net neutrality safeguards. The message is clear: We can’t create a two-tier Internet – one for the haves, and one for the have-nots. We must connect everyone to the full potential of the open Web.”

There are mixed responses on the social media, both in support and in opposition to the TRAI decision. Josh Levy, Advocacy Director at Accessnow, has appreciated saying, “India is now the global leader on #NetNeutrality. New rules are stronger than those in EU and US.”

Had differential pricing been allowed, it would have affected start-ups and content-based smaller companies adversely as they could never have managed to pay the high price to a partner service provider to make their service available for free. On the other hand, tech-giants like Facebook could have easily managed to capture the entire market. Since the inception, the Facebook-run non-profit Internet.org has run into a lot of controversies because of the hidden motive behind the claimed support for social cause.

For more details visit https://cis-india.org/internet-governance/blog/odisha-tv-february-9-2016-subhashish-panigrahi-net-neutrality-advocates-rejoice-as-trai-bans-differential-pricing

Net neutrality advocates hail Trai verdict

praskrishna — 2016-02-14T11:16:45Z

Facebook 'disappointed' with the ruling on differential pricing.

The article by Alnoor Peermohamed appeared in the Business Standard on February 9, 2016. Pranesh Prakash gave inputs.

India has demonstrated what a forward looking and pro-net neutrality policy looks like, experts and net neutrality advocates said after the Telecom Regulatory Authority of India (Trai) turned down a proposal to allow differential pricing services to function in the country.

“This ruling has happened in the face of enormous lobbying on the one side by very large companies and a ragtag bunch of people on the other. In spite of that, to see the right thing has prevailed, which is in the national interest and not what was masqueraded as national interest is very gratifying. This has not often taken place in policy making in India,” says Sharad Sharma, convenor, iSPIRT, a lobby group for indigenous software product firms.

Net neutrality activists across the world have lauded Trai’s decision not to allow large firms such as Facebook and Airtel to divide the Internet and offer selected services for free to consumers. The one year-long fight that began when Airtel proposed to offer internet companies the chance to offer customers their services for free, ended in Trai stipulating fines of Rs 50,000 a day for companies offering differential pricing services, which is capped at Rs 50 lakh.

“This has resulted now in the most expensive and stringent regulation on differential pricing that exists anywhere in the world. Activists around the world would be looking to India and will definitely be using this landmark order to fight against zero rating elsewhere,” said Pranesh Prakash, policy director at the Centre for Internet and Society (CIS), a think tank.

Facebook, which was one of the biggest stakeholders in the drive to allow differential pricing services in the country, said it was disappointed with the ruling. The firm has been accused of supporting net neutrality in the US, but standing in its way in India to get permissions to provide its Free Basics platform in India.

“Our goal with Free Basics is to bring more people online with an open, non-exclusive and free platform. While disappointed with the outcome, we’ll continue our efforts to eliminate barriers and give the unconnected an easier path to the internet and the opportunities it brings,” Facebook said in a statement.

Nikhil Pahwa, founder of Medianama, who ran a campaign called Savetheinternet against Facebook’s Free Basics called this a victory to the youth of India, saying “this outcome indicates what happens when young people actually participate in a governance process”.

According to Pahwa, there’s far too much cynicism about governments not doing the right thing. “We hope this is the beginning of something new: of people believing that they can make a difference, and persevering towards helping form policies that ensure equity and freedom for everyone.”

He added: “There are many internet-related issues that have still to be looked at, especially internet shutdowns, censorship and the encryption policy. These impact all of us, and we should be ready to voice our point of view, and the government looks like it is listening.”

India’s software sector lobby group Nasscom, which had stood against Facebook’s Free Basics platform and for net neutrality in general congratulated Trai for its ruling to disallow zero-rating and differential pricing services in the country.

“Our submission highlighted the importance of net neutrality principles, non-discriminatory access and transparent business models aligned to the goal of enhancing internet penetration in the country. The Trai announcement resounds with the submission made by Nasscom and we would like to congratulate Trai for enshrining the principles of net neutrality,” R Chandrashekhar, president of Nasscom, said in a statement.

For more details visit https://cis-india.org/internet-governance/news/business-standard-february-9-2016-alnoor-peermohamed-net-neutrality-advocates-hail-trai-verdict

Net Neutrality across South Asia

praskrishna — 2016-02-27T08:09:29Z

The Centre for Internet & Society (CIS) and the Observer Research Foundation in association with Centre for Global Communication Studies, Annenberg School for Communication, University of Pennnsylvania and Internet Policy Observatory is organizing this event at the Observer Research Foundation's office in New Delhi from 10 a.m. to 5 p.m., on December 12, 2015.

Context

Net neutrality can broadly be understood as the principle of non-discrimination which in practice allows the internet to be free and open by preventing service providers from slowing or interfering with the transfer of data. Net neutrality has risen as a global policy issue, yet cultural, political, commercial, and economical factors influence how net neutrality is understood and addressed in a particular context. Indeed, the factors driving the net neutrality debate, the way in which governments are addressing net neutrality, the role and response of industry, the public response, and the role of civil society has been varied across contexts. The topic of net neutrality is not limited to a technical debate and brings together a number of issues including the right to access, the right to freedom of expression, fair competition practices, and privacy.

This conference seeks to bring together domain experts, industry, government, and civil society across South Asia to understand how net neutrality is understood in different contexts, how it is being addressed from a policy point of view, what the varying public dialogues around net neutrality are, and what role civil society can play in influencing the debate.

For more details visit https://cis-india.org/internet-governance/events/net-neutrality-across-south-asia

Net Gain

praskrishna — 2011-08-29T11:52:54Z

The draft Electronic Service Delivery Bill, 2011, is aimed at making government services available online. But there are many hurdles to bringing in effective e-governance, says Hemchhaya De

At a time when India is hotly debating the Lokpal Bill, another significant piece of legislation is about to make its way to Parliament this monsoon session. The government has mooted the draft Electronic Service Delivery Bill, 2011, to ensure that all ministries and government departments provide their services to citizens online.

The bill, drafted by the department of information technology (DIT) under the ministry of communication and information technology, could have far-reaching benefits for citizens. If implemented, one would no longer have to stand in long queues, make frequent trips to government offices and deal with red tape in order to procure even such basic documents as driving licences or land record copies.

Of course, the key question is whether the necessary infrastructure will be in place to allow citizens to access these services via the electronic mode. In a country where active Internet user penetration in rural areas is as low as 2.13 per cent, the feasibility of e-governance depends on the state providing enough number of access centres.

E-governance is not a completely new concept in India. The Centre laid down an ambitious National e-Governance Plan (NeGP) in 2006 and roped in industry bodies like Nasscom to facilitate the delivery of e-services. According to a Nasscom report, there has been substantial progress in NeGP. Of the 1,100 services targeted under the plan, over 600 services in both government-to-citizen (G2C) and government-to-business (G2B) domains across central ministries and state departments can now be accessed electronically.

However, many experts feel that the NeGP has not lived up to its promise. "Progress in NeGP has been slow," says Subhash Bhatnagar, honorary adjunct professor at IIM, Ahmedabad, and member of the steering committee of the 12th Five Year Plan (2012-17) for the communication and IT and information sector.

That said, some states have been running successful e-government projects. “Take Karnataka’s online delivery and management of land records,” says Bhatnagar. “The online system offers services to ordinary people on a first-come, first-served basis without subjecting them to the whims and fancies of babus.”

However, Karnataka is an exception rather than the rule and many states are lagging behind when it comes to extending e-governance. “IIM, Ahmedabad, carried out an e-governance impact assessment study in 12 states. West Bengal is one state which hasn’t fared well and it figures in the bottom half of the list,” reveals Bhatnagar.

The draft Electronic Service Delivery Bill aims to exert pressure on states and government departments to fully automate or computerise their services to citizens. Crucially, it sets a clear time limit for delivering online services. The bill says, “every competent authority of the appropriate Government” is required to publish or specify the services that will be digitised within six months from the commencement of the law. “If there’s any delay, departments have to explain it in writing,” says a senior official of the DIT who does not wish to be named.

The bill further mandates that all public services should be delivered in electronic modes within five years from the commencement of the law. This period may be extended by not more than three years.

In addition to a grievance redressal mechanism, the bill proposes setting up a Central Electronic Service Delivery Commission to enforce the provisions of the law. The commission should comprise a central chief commissioner and not more than two central commissioners — all of whom shall have “worked as secretary or equivalent level… either in the central government or in the state government”.

Many experts feel that the proposed legislation is a step in the right direction. “The bill will reduce red tape and promote efficient services in various government departments,” says Payal Chawla, partner, Hemant Sahai Associates, a Delhi-based law firm. “The time limit of five years with an extension of a maximum of three years to bring all the services in the purview of the legislation is well-intended.”

Agrees Sunil Abraham, executive director, Centre for Internet and Society (CIS), a Bangalore-based organisation which carries out research in IT. “The bill ensures that government departments publicly commit to Service Level Agreements (SLAs) and demonstrate compliance to these SLAs,” he says. “Like the RTI Act, there is an office of the central chief commissioner which can penalise officials who don’t provide electronic services or comply with their own SLAs.”

But others argue that the bill is too open-ended. “I’d have liked to see the services specified clearly,” says Neel Ratan, executive director, PricewaterhouseCoopers. “Just starting an e-service isn’t enough — the quality or level of performance of the service needs to be ascertained as well. The bill seems to be silent on how quality can be ensured.”

Bhatnagar too feels that the draft bill should have first clearly defined what “electronic service delivery” is all about. All it says is “electronic service delivery means the delivery of services through electronic mode including, inter alia, the receipt of forms and applications, issue or grant of any licence, permit, certificate, sanction or approval and the receipt or payment of money”.

However, electronic delivery of services should encompass all end-to-end steps necessary for delivering the service, points out Bhatnagar. “Receiving an application, receiving supporting documents, receiving payment of various fees, issue of licence/receipts/certificates/ documents such as ration cards and passports and payment of dues to citizens should be web enabled. Citizens who wish to carry out the transaction through a portal without having to visit a government office should be able to do so,” he says.

Furthermore, says Bhatnagar, government agencies should ensure that every citizen has access to a public service delivery centre (government owned or private) from where he or she can access such services. And a person shouldn’t have to travel more than 10km to access these services.

Experts say there are several hurdles to e-governance in India. “The domestic IT industry has not focussed on this important market and services have been decentralised without ensuring common standards. So different states may be using different software, which can make the whole system messy and lead to uneven and poor quality projects,” says Abraham of CIS. “We are still very far away from the sophistication of G2C and G2B systems currently deployed in many Western countries.”

In sum, enacting a law to bring in complete e-governance may not be enough. Without the necessary investment in the country’s technology infrastructure, the initiative, however well-intended, may never truly get off the ground.

Graphic by Mantashir Iqbal Shaikh

This article by Hemchhaya De was published in the Telegraph on 24 August 2011. The original can be read here

For more details visit https://cis-india.org/news/net-gain