The Centre for Internet and Society
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Indians Plead for #NetNeutrality as Airtel Raises Data Charges
https://cis-india.org/openness/blog-old/global-voices-december-30-2014-indians-plead-for-net-neutrality-as-aitel-raises-data-charges
<b></b>
<p style="text-align: justify; ">Click to read the article <a class="external-link" href="http://globalvoicesonline.org/2014/12/30/indians-plead-for-netneutrality-as-airtel-raises-data-charges/">published in the Global Voices</a> on December 30, 2014.</p>
<hr />
<p style="text-align: justify; ">After Indian mobile data service provider Airtel <a href="http://gadgets.ndtv.com/telecom/news/airtel-unveils-voip-calling-pack-for-prepaid-customers-postpaid-plans-coming-soon-640220" target="_blank">announced</a> plans to introduce data charges for VoIP usage, it received a rash of criticism from customers and open web advocates alike.</p>
<p style="text-align: justify; ">With 192.22 million users (as of August 2013), <a href="http://en.wikipedia.org/wiki/Bharti_Airtel" target="_blank">Airtel </a>is India's largest mobile telephony provider and Asia-Pacific's second largest mobile operator. Although plans are now on hold due to regulatory restrictions, advocates worry that the company may yet find a way impose the fee increase.</p>
<p style="text-align: justify; ">On December 26, company proposed to raise costs for mobile phone users who rely on services like WhatsApp, Skype, and Viber to communicate with their contacts, requiring them to pay Rs.0.04/10KB (0.063 USD, based on current conversion rate) for 3G and Rs. 0.10/10KB (0.158 USD) for 2G service where a local or national call will cost one third of this amount or less.</p>
<blockquote>
<p>If you pay a fixed amount for internet data pack, Airtel will charge you extra for internet calls on Skype, Viber or any free calling app. How much? 4 paise for every 10 Kilo Bytes on 3G and 10 paise for every 10 Kilo Bytes on 2G.</p>
<p>- <a href="http://netneutrality.in/" target="_blank">Netneutrality.in</a></p>
</blockquote>
<p style="text-align: justify; ">The new plan to charge Rs. 75 for 75 MB of data usage over VoIP calls was heavily criticized on social media:</p>
<blockquote>
<p>So let me get this straight. Airtel is worried about people using a mere 75 MB out of their data allowance? WTF? <a href="https://twitter.com/hashtag/BoycottAirtel?src=hash">#BoycottAirtel</a></p>
<p>— Madhu Menon (@madmanweb) <a href="https://twitter.com/madmanweb/status/548472041901260800">December 26, 2014</a></p>
</blockquote>
<p style="text-align: justify; ">Messages against Airtel on Twitter and Facebook included hashtags such as <a href="https://twitter.com/hashtag/BoycottAirtel?src=hash" target="_blank">#BoycottAirtel</a> and <a href="https://twitter.com/hashtag/NetNeutrality?src=hash" target="_blank">#NetNeutrality</a>.</p>
<blockquote>
<p>In protest of Airtel India's violation of net neutrality principles, I disabled all data packs in my mobile number .</p>
<p>I am not using skype or viber usually . My usual video requirements are<a href="http://chatb.org/" rel="nofollow" target="_blank">chatb.org</a> and Google hangout. But a carrier breaking net neutrality is a very serious development . Raise your voice against this .</p>
<p>Read More about Airtel Breaking Net Neutrality here <a href="http://l.facebook.com/l.php?u=http%3A%2F%2Fnetneutrality.in%2F&h=5AQEupp_4&enc=AZODIt9843Zfg0KTigPc37NtkWll4o_jnCF5xk0p-rwPCJ6BGVPyr7nrt427PIw8sBdvQXe8FqbbLynwJCYwCQoel_zl5wgOfqAYMZMCnrqMP9VRFIct2P_5YCx9sRsnskHUTeoGK5GHimPYVlvtDhXpbbcaTPoWROlULIgdbRfG2w&s=1" rel="nofollow" target="_blank">http://netneutrality.in/</a></p>
<p>I would like to port to some other services without gate keeping after a few weeks If airtel continues same path.</p>
<p><a href="https://www.facebook.com/hashtag/netneutrality?source=feed_text&story_id=1531344597115231">#netneutrality</a> <a href="https://www.facebook.com/hashtag/india?source=feed_text&story_id=1531344597115231">#india</a> <a href="https://www.facebook.com/hashtag/airtel?source=feed_text&story_id=1531344597115231">#airtel</a> <a href="https://www.facebook.com/hashtag/fail?source=feed_text&story_id=1531344597115231">#fail</a></p>
<p>- Anivar Joshina (on <a href="https://www.facebook.com/anivar.aravind.a/posts/1531344597115231" target="_blank">Facebook</a>)</p>
</blockquote>
<p style="text-align: justify; ">In an op-ed, Indian online news portal Niti Central's CEO <a href="https://twitter.com/shashidigital" target="_blank">Shashi Shekhar</a> said the move could put Indian Prime Minister Narendra Modi's “Digital India” initiative in jeopardy.</p>
<blockquote>
<p><a href="http://www.niticentral.com/2014/09/22/narendra-modis-digital-india-taking-shape-239067.html" target="_blank">Prime Minister Narendra Modi’s Vision of a Digital India</a> will be in jeopardy unless the larger mess in Telecom is fixed urgently on priority and “Net Neutrality” does not make that priority list.</p>
<p>- <a href="https://twitter.com/shashidigital" target="_blank">Shashi Shekhar</a>, CEO, Niti Central</p>
</blockquote>
<p style="text-align: justify; ">Airtel has not released any further response on the issue of net neutrality since their initial announcement, which read as follows:</p>
<blockquote>
<p>All Internet/data packs or plans (through which customer can avail discounted rate) shall only be valid for internet browsing and will exclude VoIP (Both incoming/ Outgoing). VoIP over data connectivity would be charged at standard data rates of 4p / 10 KB (3G service) and 10p / 10 KB (2G service).</p>
<p>- Published on <a href="http://telecomtalk.info/airtel-starts-charging-for-voip-data-viber-skype-charges/128118/" target="_blank">Telecomtalk.info </a></p>
</blockquote>
<p style="text-align: justify; "><img src="https://cis-india.org/home-images/airtel.png" alt="Airtel" class="image-inline" title="Airtel" /></p>
<p style="text-align: justify; ">Reacting to the public outcry against Airtel, India's Union Minister of Communications <a href="https://en.wikipedia.org/wiki/Ravi_Shankar_Prasad" target="_blank">Ravi Shankar Prasad</a> <a href="http://gadgets.ndtv.com/telecom/news/government-to-look-into-airtels-plan-to-charge-for-internet-calls-ravi-shankar-prasad-639713">pledged to look into matter</a>. According to news portal <a href="http://tech.firstpost.com/news-analysis/airtel-to-charge-extra-for-voip-calls-is-it-time-to-bid-goodbye-to-free-messaging-services-247004.html" target="_blank">First Post</a>, telecom operators voiced opposition to <a href="http://en.wikipedia.org/wiki/Over-the-top_content">“over-the-top”</a> VoIP services like WhatsApp, Skype, and Viber for some time, but the <a href="https://en.wikipedia.org/wiki/Telecom_Regulatory_Authority_of_India" target="_blank">Telecom Regulatory Authority of India</a> (TRAI) has thus far stood in the way of a price increase.</p>
<blockquote>
<p>Airtel has started on plans to charge OTT users particularly using VOIP services like viber and skype. TRAI had earlier this year rejected such demands from Indian operators. Even after this Airtel has gone ahead and kickstarted this practice.</p>
<p>- Sandip Pillai (on <a href="https://www.change.org/p/telecom-regulatory-authority-of-india-request-trai-to-stop-airtel-from-charging-voip-users-and-protect-net-neutrality-at-par-with-other-nations" target="_blank">Change.org</a>)</p>
</blockquote>
<p style="text-align: justify; ">Airtel has pushed for a policy level change to legitimize exceptional data charges and many other <a href="http://en.wikipedia.org/wiki/Over-the-top_content">over-the-top</a> services. But these were <a href="http://in.reuters.com/article/2014/12/29/bharti-airtel-rates-idINKBN0K70A920141229" target="_blank">declined </a>by TRAI who contended that Airtel's plans were “illegal and violation of net neutrality,” forcing Airtel to drop the plan — for now.</p>
<blockquote>
<p>In view of the news reports that a consultation paper will be issued shortly by TRAI on issues relating to services offered by OTT players including VOIP, we have decided not to implement our proposed launch of VoIP packs.</p>
<p>We have no doubt that as a result of the consultation process a balanced outcome would emerge that would not only protect the interests of all stakeholders and viability of this important sector but would also encourage much needed investments in spectrum and roll out of data networks to fulfill the objective of digital India.</p>
<p>- Reported on <a href="http://www.medianama.com/2014/12/223-airtel-withdraws-voip-charges-for-now-after-forcing-trais-hand-on-net-neutrality-consultation/" target="_blank">MediaNama</a> by Nikhil Pahwa</p>
</blockquote>
<p>
For more details visit <a href='https://cis-india.org/openness/blog-old/global-voices-december-30-2014-indians-plead-for-net-neutrality-as-aitel-raises-data-charges'>https://cis-india.org/openness/blog-old/global-voices-december-30-2014-indians-plead-for-net-neutrality-as-aitel-raises-data-charges</a>
</p>
No publishersubhaNet NeutralityInternet Governance2015-02-11T15:10:44ZBlog EntryReply to RTI filed with BSNL regarding Network Neutrality and Throttling
https://cis-india.org/internet-governance/blog/reply-to-rti-filed-with-bsnl-regarding-network-neutrality-and-throttling
<b>As part of its work on Network Neutrality, the Centre for Internet and Society through Tarun Krishnakumar had filed a Right To Information (RTI) application with Bharat Sanchar Nigam Ltd. (BSNL), a state-owned teleco holding a market share of 65 per cent in the Indian land line and broadband markets — regarding its position on and adherence to Network Neutrality principles.
</b>
<p style="text-align: justify; ">The application — targeted at easing the information asymmetry between internet service providers (ISPs) and consumers — elicited responses that provide interesting insights into the functioning of ISPs in India.</p>
<p>The application queried BSNL about its:</p>
<ul>
<li>Adherence to net neutrality / non-discrimination principles</li>
<li>Throttling on the basis of content</li>
<li>Throttling on the basis of protocol</li>
<li>Limiting traffic / speeds for pornographic websites</li>
<li>Limiting traffic / speeds for P2P / torrent connection</li>
</ul>
<ul>
</ul>
<p style="text-align: justify; ">In its reply, BSNL denied all forms of throttling on the basis of content and reaffirmed that it is bound by the terms of its ISP license granted by the Department of Telecommunications. The application and response are below:</p>
<p> </p>
<h3 style="text-align: center; "><a name="application"></a><b><span>Application</span>:</b></h3>
<p align="center" style="text-align: center; "><b><span>Request for Information under the Right to Information Act, 2005</span></b></p>
<p>To,</p>
<p>Sh. Suresh Kumar<br />Addl.GM (MIS) & CPIO ,BSNL Co.<br />R. No. -29, IR Hall<br />Eastern Court, Janpath<br />New Delhi – 110001</p>
<p><b>Date of application</b>: 08-10-2014</p>
<p align="center" style="text-align: center; "><span style="text-decoration: underline;"><b>Subject: Network Neutrality / Throttling / Data discrimination policies of BSNL</b></span></p>
<p style="text-align: justify; ">Please provide information as to the policies of BSNL / decisions taken in respect of the following questions. Please supply where possible a copy of the relevant documents, minutes of meeting, position papers etc.</p>
<ol>
<li>Does BSNL support the principle of net neutrality and non-discrimination of data?</li>
<li>Does BSNL regulate internet traffic flows depending on the type of content being accessed by the user on its broadband connections?</li>
<li>Does BSNL regulate internet traffic flows depending on the type of protocol being used by the user on its broadband connections?</li>
<li>Please provide details of the various types of content/protocols for which BSNL regulates traffic and the nature of such regulations, restrictions as the case may be.</li>
<li>Please provide a list of traffic for which BSNL engages in limiting internet speed or throttling.</li>
<li>Does BSNL limit internet traffic or upload/download speeds for pornographic websites and content?</li>
<li>Does BSNL limit internet traffic or upload/download speeds for Peer-to-peer or torrent connections?</li>
</ol>
<p>Please provide copies of all documents that pertain to BSNL’s policies and decisions in this regard.</p>
<p style="text-align: justify; ">It is certified that I am a citizen of India and that I do not fall within the BPL category. I am enclosing Rupees thirty (Rs. 30) towards the application fee and photocopying costs under the RTI Act for the information and documents requested. Kindly inform me at the address stated below if any further fees are required to be paid.</p>
<p><b>Applicant</b>:</p>
<p>Tarun Krishnakumar<br />Centre for Internet and Society<br />No.194, 2nd C Cross Road, Domlur II Stage,<br />Bangalore - 560071</p>
<p> </p>
<h3 style="text-align: center; "><span>RESPONSE FROM BSNL:</span></h3>
<div style="text-align: center; "><span><br /></span></div>
<p>To,</p>
<p>Sh. Tarun Krishnakumar<br />Centre for Internet and Society<br />No. 194, 2<sup>nd</sup> C Cross Road, Domulur II stage,<br />Bengaluru – 560071</p>
<p><span style="text-decoration: underline;">Subject: Supply of Information under RTI ACT – 2005</span></p>
<p>Case of Shri. Tarun Krishnakumar – reg.</p>
<p>Ref: - 1. No. BSNL/BBNW/RTI Act/Vol II/2012-13/52 dtd 28.10.2014</p>
<p>2. No. 23-744/14-RTI dtd 21.10.2014</p>
<p>With reference to the above subject, for the point wise information furnished as below:</p>
<ol>
<li>BSNL is following the guidelines as per the ISP License Agreement of DOT.</li>
<li>NO, BSNL is NOT regulating the Internet traffic flow based on content.</li>
<li>NO, BSNL is not regulating the Internet traffic flow based on the type of protocol.</li>
<li>Not Applicable</li>
<li>Not Applicable</li>
<li>NO</li>
<li>NO</li>
<li>The documents relating to above are available on DOT’s website http://dot.gov.in</li>
</ol>
<p>(Sd/-)</p>
<p>DE Admin and APIO<br />O/o General Manager<br />BBNW, BSNL,<br />5<sup>th</sup> floor, BG (E), TE Building,<br />Lazar Road, Fraser Town,<br />Bengaluru – 560005<br />Tel No. 080 - 25808878</p>
<p>Copy to:</p>
<ol>
<li>The Addl. GM (A) & CPIP O/o CGM, BBNW, New Delhi for information pl.</li>
</ol>
<p>The scanned version of the reply is available <a class="external-link" href="https://www.scribd.com/doc/250739602/BSNL-Reply-on-Net-Neutrality">here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/reply-to-rti-filed-with-bsnl-regarding-network-neutrality-and-throttling'>https://cis-india.org/internet-governance/blog/reply-to-rti-filed-with-bsnl-regarding-network-neutrality-and-throttling</a>
</p>
No publishertarunInternet AccessNet NeutralityInternet GovernanceInformation Technology2014-12-22T14:45:03ZBlog EntryThe Socratic debate: Whose internet is it anyway?
https://cis-india.org/internet-governance/blog/economic-times-november-18-2014-pranesh-prakash-the-socratic-debate-whos-internet-is-it-anyway
<b>In the US, President Obama recently spoke out on the seemingly arcane topic of net neutrality. What is more astounding is that the popular satire news show host John Oliver spent a 13-minute segment talking about it in June, telling Internet trolls to “focus your indiscriminate rage in a useful direction” by visiting the US Federal Communications Commission’s (FCC) website and submitting comments on its weak draft proposal on net neutrality.</b>
<p style="text-align: justify; ">The <a class="external-link" href="http://blogs.economictimes.indiatimes.com/et-citings/the-socratic-debate-whose-internet-is-it-anyway/">article was published in the Economic Times</a> on November 18, 2014.</p>
<hr />
<p style="text-align: justify; ">Due to the work of activists, popular media coverage, pro-net neutrality technology companies, and John Oliver, eventually the FCC received 1.1 million responses. Text analysis by the Sunlight Foundation using natural language processing found that only 1% of the responses were clearly opposed to net neutrality. So millions of people in the US are both aware and care about this issue. But the general response in India would be: what is net neutrality and why should I be concerned?</p>
<p style="text-align: justify; ">Net neutrality is commonly described as the principle of ensuring that there is no discrimination between the different ‘packets’ that an Internet service provider (ISP) carries. That means that the traffic from NDTV should be treated equally by Reliance Infocomm as the traffic from Network 18’s CNNIBN; that even if Facebook wants to pay Airtel to deliver Whatsapp’s packets faster than Viber’s, Airtel may not do so; that peer-to-peer traffic is not throttled; that Facebook will not be able to pay Airtel to keep its subscribers bound within its walled gardens; and also that Airtel can’t claim to be providing Internet access while restricting that to only Facebook or Whatsapp.</p>
<p style="text-align: justify; ">The counter to this by telecom companies the world over, which has little evidence backing it, is primarily two-fold: first, one of equity — that it is ‘unfair’ for the likes of YouTube to get a ‘free ride’ on Airtel networks, hogging up bandwidth but not paying them; and second, that of economic incentives — networks are bleeding money due to services like WhatsApp and Skype replacing SMS and voice, and not being able to charge them will lead to a decrease in profitability and network expansion. The first claim is based on a myth of the ‘free ride’, while the reality is that subscribers who download more also pay the ISP more, while contentemitting companies also have to pay their network providers as per the traffic they generate, and those network providers, in turn, have to enter into ‘transit’ or ‘peering’ agreements with the ISPs that eventually provide access to consumers. The second claim has little evidence to back it up. Efficient competition is the best driver of both profit as well as network expansion. VSNL complained about services like Net2Phone in the 1990s and even filtered all voice-over-IP (VoIP) traffic — and illegally blocked a number of VoIP websites — to preserve its monopoly over international telephony. Instead, removing VSNL’s monopoly only benefited our nation. As for network expansion, it is inability of networks to profit from sparsely populated rural areas that poses a major roadblock. Fixing those problems require smart pricing by telecom companies and intelligent regulation, including exploring policy options like shared spectrum, but they do not necessarily require the abandoning of net neutrality.</p>
<p style="text-align: justify; ">However, the fact that the reasons telecom companies often provide against net neutrality are bogus doesn’t mean that it’s easy to ensure net neutrality. The Trai has been exploring this issue by holding a seminar on OTT services. However, the main focus of the discussions were not whether and how India should ensure net neutrality: it was on whether the government should regulate services like WhatsApp and bring them under the licence Raj. Yes, the debate going around in the regulatory circles is whether India should implement rules to ensure net non-neutrality so as favour telecom companies! Net neutrality is a difficult issue in regulatory terms since there is no common understanding among academics and activists of what all should fall under its ambit: only the ‘last mile’ or interconnection as well?</p>
<p style="text-align: justify; ">The policy dialogue in India is far removed from this and from considering the nuanced positions of anti-net neutrality scholars, such as Christopher Yoo, who raise concerns about the harms to innovation and the free market that would be caused by mandating net neutrality. The situation in India is much more dire, since blatant violations of net neutrality — howsoever defined — are already happening with Airtel launching its ‘One Touch Internet’, a limited walled garden approach that lies about offering access to the ‘Internet’ while only offering access to a few services based on secretive agreements with other companies. Mark Zuckerberg, the founder of Facebook, recently toured India talking about his grand vision of providing connectivity to the bottom half of the pyramid yet did not talk about how that connectivity would not be to the Internet, but will be limited to only a few services — including Facebook.</p>
<p style="text-align: justify; ">Even if we had good laws in favour of net neutrality, without effective monitoring and forceful action by the government, they will amount to little. s. Undoubtedly the contours of the conversation that needs to happen in India over net neutrality will be different from that happening in more developed countries with higher levels of Internet penetration.</p>
<p style="text-align: justify; ">However it is a cause of grave concern that while net neutrality is being brutally battered by telecom companies in the absence of any regulation, they are also seeking to legitimize their battery through regulation. It is time the direction of the conversation changed. Perhaps we should invite John Oliver over.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/economic-times-november-18-2014-pranesh-prakash-the-socratic-debate-whos-internet-is-it-anyway'>https://cis-india.org/internet-governance/blog/economic-times-november-18-2014-pranesh-prakash-the-socratic-debate-whos-internet-is-it-anyway</a>
</p>
No publisherpraneshNet NeutralityInternet Governance2014-12-09T13:35:45ZBlog EntryNet Neutrality, Free Speech and the Indian Constitution – III: Conceptions of Free Speech and Democracy
https://cis-india.org/internet-governance/blog/net-neutrality-free-speech-and-the-indian-constitution-2013-iii-conceptions-of-free-speech-and-democracy
<b>In this 3 part series, Gautam Bhatia explores the concept of net neutrality in the context of Indian law and the Indian Constitution.</b>
<p style="text-align: justify; ">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 <i>who </i>can speak and, consequently, <i>what </i>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.</p>
<p style="text-align: justify; ">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 <a href="http://www.law.cornell.edu/supremecourt/text/424/1#writing-USSC_CR_0424_0001_ZO"><i>Buckley v. Valeo</i></a>: <i>“t</i><i>he 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.” </i>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.</p>
<p style="text-align: justify; "><i> </i></p>
<p style="text-align: justify; "><i> </i>We can tentatively label the second theory as the <i>social-democratic theory </i>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.</p>
<p style="text-align: justify; ">Surprisingly, one of the most powerful judicial statements for this vision also comes from the United States. In <a href="http://supreme.justia.com/cases/federal/us/395/367/case.html"><i>Red Lion v. FCC</i></a>, 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:</p>
<p style="text-align: justify; ">“[Free speech requires] <i>preserv</i>[ing]<i> an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance <span style="text-decoration: underline;">monopolization of that market</span>, whether it be by the Government itself or <span style="text-decoration: underline;">a private licensee</span>…</i><i> 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</i>.”</p>
<p style="text-align: justify; ">What of India? In the early days of the Supreme Court, it adopted something akin to the libertarian theory of free speech. In <a href="http://indiankanoon.org/doc/243002/"><i>Sakal Papers v. Union of India</i></a>, 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 <i>Buckley v. Valeo </i>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, <a href="http://www.indiankanoon.org/doc/125596/"><i>Bennett Coleman v. Union of India</i></a>, but this time, it had to contend with a strong dissent from Justice Mathew. After noting that “<i>it is no use having a right to express your idea, unless you have got a medium for expressing it”</i>, Justice Mathew went on to hold:</p>
<p style="text-align: justify; ">“<i>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.</i>”</p>
<p style="text-align: justify; "><i> </i></p>
<p style="text-align: justify; "><i> </i>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.</p>
<p style="text-align: justify; ">Over the years, the Court has moved away from the majority opinions in <i>Sakal Papers </i>and <i>Bennett Coleman</i>, and steadily come around to Justice Mathew’s view. This is particularly evident from two cases in the 1990s: in <a href="http://indiankanoon.org/doc/921638/"><i>Union of India v. The Motion Picture Association</i></a>, 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 “<i>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 </i><i><span style="text-decoration: underline;">promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues</span></i><i>. Clearly, the impugned provisions are designed to further free speech and expression and not to curtail it.</i>”</p>
<p style="text-align: justify; "><a href="http://www.indiankanoon.org/doc/304068/"><i>LIC v. Manubhai D. Shah</i></a> is even more on point. In that case, the Court upheld a right of reply in an <i>in-house </i>magazine, <i>“because fairness demanded that both view points were placed before the readers,</i><i> </i><i><span style="text-decoration: underline;">however limited be their number, to enable them to draw their own conclusions and unreasonable</span></i><i> </i><i>because there was no logic or proper justification for refusing publication…</i><i> </i><i>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</i>…” This goes even further than Justice Mathew’s dissent in <i>Bennett Coleman</i>, and the opinion of the Court in <i>Motion Picture Association</i>, in holding that not merely is it permitted to structure the public sphere in an equal and inclusive manner, but that it is a <i>requirement </i>of Article 19(1)(a).</p>
<p style="text-align: justify; ">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. <a href="http://motherboard.vice.com/read/net-neutrality-monopoly-and-the-death-of-the-democratic-internet?trk_source=homepage-lede">And if there is one thing that fast-lanes over the internet threaten, it is certainly a free and inclusive (digital) public sphere</a>. 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.</p>
<p style="text-align: justify; "><span>For the previous post, please see: http://cis-india.org/internet-governance/blog/-neutrality-free-speech-and-the-indian-constitution-part-2.</span></p>
<p style="text-align: justify; "><span>_____________________________________________________________________________________________________</span></p>
<p style="text-align: justify; "><span><i style="text-align: justify; ">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 <a class="moz-txt-link-freetext" href="http://indconlawphil.wordpress.com/">http://indconlawphil.wordpress.com</a>. Here at CIS, he will be blogging on issues of online freedom of speech and expression.</i></span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/net-neutrality-free-speech-and-the-indian-constitution-2013-iii-conceptions-of-free-speech-and-democracy'>https://cis-india.org/internet-governance/blog/net-neutrality-free-speech-and-the-indian-constitution-2013-iii-conceptions-of-free-speech-and-democracy</a>
</p>
No publishergautamFreedom of Speech and ExpressionNet NeutralityInternet Governance2014-05-27T10:21:24ZBlog EntryMarco Civil da Internet: Brazil’s ‘Internet Constitution’
https://cis-india.org/internet-governance/blog/marco-civil-da-internet
<b>On March 25, 2014, Brazil's lower house of parliament passed bill no. 2126/2011, popularly known as Marco Civil da Internet. The Marco Civil is a charter of Internet user-rights and service provider responsibilities, committed to freedom of speech and expression, privacy, and accessibility and openness of the Internet. In this post, the author looks at the pros and cons of the bill.</b>
<h3><em><strong>Introduction:</strong></em></h3>
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<div style="text-align: justify; ">Ten months ago, Edward Snowden’s revelations of the U.S. National Security Agency’s extensive, warrantless spying dawned on us. Citizens and presidents alike expressed their outrage at this sweeping violation of their privacy. While India’s position remained carefully neutral, or indeed, supportive of NSA’s surveillance, Germany, France and Brazil cut the U.S. no slack. Indeed, at the 68th session of the United Nations General Assembly, Brazilian President Dilma Rousseff (whose office the NSA had placed under surveillance) stated, “<em>Tampering in such a manner in the affairs of other countries is a breach of International Law and is an affront to the principles that must guide the relations among them, especially among friendly nations.</em>” Brazil, she said, would “<em>redouble its efforts to adopt legislation, technologies and mechanisms to protect us from the illegal interception of communications and data.</em>”</div>
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<div>Some may say that Brazil has lived up to its word. Later this month, Brazil will be host to <em>NETmundial</em>, the Global Multi-stakeholder Meeting on the Future of Internet Governance, jointly organized by the Brazilian Internet Steering Committee (CGI.br) and the organization /1Net. The elephantine invisible presence of Snowden vests NETmundial with the hope and responsibility of laying the ground for a truly multi-stakeholder model for governing various aspects of the Internet; a model where governments are an integral part, but not the only decision-makers. The global Internet community, comprising users, corporations, governments, the technical community, and NGOs and think-tanks, is hoping devise a workable method to divest the U.S. Government of its <em>de facto</em> control over the Internet, which it wields through its contracts to manage the domain name system and the root zone.</div>
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<div>But as Internet governance expert Dr. Jeremy Malcolm put it, these technical aspects do not make or break the Internet. The real questions in Internet governance underpin the rights of users, corporations and netizens worldwide. Sir Tim Berners-Lee, when he <a class="external-link" href="http://www.theguardian.com/technology/2014/mar/12/online-magna-carta-berners-lee-web">called for</a> an Internet Bill of Rights, meant much the same. For Sir Tim, an open, neutral Internet is imperative if we are to keep our governments open, and foster “<em>good democracy, healthcare, connected communities and diversity of culture</em>”. Some countries agree. The Philippines envisaged a <em>Magna Carta</em> for Internet Freedom, though the Bill is pending in the Philippine parliament.</div>
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<h3><strong><em>Marco Civil da Internet:</em></strong></h3>
<div>Last week, on March 25, 2014, the Brazilian Chamber of Deputies (the lower house of parliament) passed the <em>Marco Civil da Internet</em>, bill 2126/2011, a charter of Internet rights. The <em>Marco Civi</em>l is considered by the global Internet community as a one-of-a-kind bill, with Sir Tim Berners-Lee <a class="external-link" href="http://www.webfoundation.org/2014/03/marco-civil-statement-of-support-from-sir-tim-berners-lee/?utm_source=hootsuite&utm_campaign=hootsuite">hailing</a> the “<em>groundbreaking, inclusive and participatory process has resulted in a policy that balances the rights and responsibilities of the individuals, governments and corporations who use the Internet</em>”.</div>
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<div>The <em>Marco Civil</em>’s journey began with a two-stage public consultation process in October 2009, under the aegis of the Brazilian Ministry of Justice’s Department of Legislative Affairs, jointly with the Getulio Vargas Foundation’s Center for Technology and Society of the Law School of Rio de Janeiro (CTS-FGV). The collaborative process <a class="external-link" href="http://observatoriodainternet.br/wp-content/uploads/2012/11/Internet-Policy-Report-Brazil-2011.pdf">involved</a> a 45-day consultation process in which over 800 comments were received, following which a second consultation in May 2010 received over 1200 comments from individuals, civil society organizations and corporations involved in the telecom and technology industries. Based on comments, the initial draft of the bill was revamped to include issues of popular, public importance, such as intermediary liability and online freedom of speech.</div>
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<div>An official English translation of the <em>Marco Civil</em> is as yet unavailable. But an <a class="external-link" href="https://docs.google.com/document/d/1kJYQx-l_BVa9-3FZX23Vk9IfibH9x6E9uQfFT4e4V9I/pub">unofficial translation</a> (please note that the file is uploaded on Google Drive), triangulated against <a class="external-link" href="http://infojustice.org/archives/32527">online</a> <a class="external-link" href="http://www.zdnet.com/brazil-passes-groundbreaking-internet-governance-bill-7000027740http://www.zdnet.com/brazil-passes-groundbreaking-internet-governance-bill-7000027740/">commentary</a> on <a class="external-link" href="http://www.zdnet.com/all-you-need-to-know-about-brazils-internet-constitution-7000022726/">the bill</a>, reveals that the following issues were of primary importance:</div>
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<h3><strong><em>The fundamentals:</em></strong></h3>
<div>The fundamental principles of the <em>Marco Civil</em> reveal a commitment to openness, accessibility neutrality and democratic collaboration on the Internet. Art. 2 (see unofficial translation) sets out the fundamental principles that form the basis of the law. It pledges to adhere to freedom of speech and expression, along with an acknowledgement of the global scale of the network, its openness and collaborative nature, its plurality and diversity. It aims to foster free enterprise and competition on the Internet, while ensuring consumer protection and upholding human rights, personality development and citizenship exercise in the digital media in line with the network’s social purposes. Not only this, but Art. 4 of the bill pledges to promote universal access to the Internet, as well as “<em>to information, knowledge and participation in cultural life and public affairs</em>”. It aims to promote innovation and open technology standards, while ensuring interoperability.</div>
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<div>The <em>Marco Civil</em> expands on its commitment to human rights and accessibility by laying down a “<em>discipline of Internet use in Brazil</em>”. Art. 3 of the bill guarantees freedom of expression, communication and expression of thoughts, under the terms of the Federal Constitution of Brazil, while at the same time guaranteeing privacy and protection of personal data, and preserving network neutrality. It also focuses on preserving network stability and security, by emphasizing accountability and adopting “<em>technical measures consistent with international standards and by encouraging the implementation of best practices</em>”.</div>
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<div>These principles, however, are buttressed by rights assured to Internet users and responsibilities of and exceptions provided to service providers.</div>
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<h3><strong><em>Rights and responsibilities of users and service providers:</em></strong></h3>
<div><strong><span style="text-decoration: underline;">Net neutrality:</span></strong></div>
<div>Brazil becomes one of the few countries in the world (joining the likes of the Netherlands, Chile and Israel in part) to preserve network neutrality by legislation. Art. 9 of the <em>Marco Civil</em> requires all Internet providers to “<em>to treat any data package with isonomy, regardless of content, origin and destination, service, terminal or application</em>”. Not only this, but Internet providers are enjoined from blocking, monitoring or filtering content during any stage of transmission or routing of data. Deep packet inspection is also forbidden. Exceptions may be made to discriminate among network traffic <em>only</em> on the basis of essential technical requirements for services-provision, and for emergency services prioritization. Even this requires the Internet provider to inform users in advance of such traffic discrimination, and to act proportionately, transparently and with equal protection.</div>
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<div><strong><span style="text-decoration: underline;">Data retention, privacy and data protection:</span></strong></div>
<div>The <em>Marco Civil</em> includes provisions for the retention of personal data and communications by service providers, and access to the same by law enforcement authorities. However, record, retention and access to Internet connection records and applications access-logs, as well as any personal data and communication, are required to meet the standards for “<em>the conservation of intimacy, private life, honor and image of the parties directly or indirectly involved</em>” (Art. 10). Specifically, access to identifying information and contents of personal communication may be obtained <em>only</em> upon judicial authorization.</div>
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<div>Moreover, where data is collected within Brazilian territory, processes of collection, storage, custody and treatment of the abovementioned data are required to comply with Brazilian laws, especially the right to privacy and confidentiality of personal data and private communications and records (Art. 11). Interestingly, this compliance requirement is applicable also to entities incorporated in foreign jurisdictions, which offer services to Brazilians, or where a subsidiary or associate entity of the corporation in question has establishments in Brazil. While this is undoubtedly a laudable protection for Brazilians or service providers located in Brazil, it is possible that conflicts may arise (<a class="external-link" href="http://www.economist.com/news/americas/21599781-brazils-magna-carta-web-net-closes?frsc=dg%7Ca&fsrc=scn/tw_app_ipad">with penal consequences</a>) between standards and terms of data retention and access by authorities in other jurisdictions. In the predictable absence of harmonization of such laws, perhaps rules of conflicts of law may prove helpful.</div>
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<div>While data retention remained a point of contention (Brazil initially sought to ensure a 5-year data retention period), under the <em>Marco Civil</em><span>, Internet providers are required to retain connection records for 1 year under rules of strict confidentiality; this responsibility cannot be delegated to third parties (Art. 13). Providers providing the Internet connection (such as Reliance or Airtel in India) are forbidden from retaining records of access to applications on the Internet (Art. 14). While law enforcement authorities may request a longer retention period, a court order (filed for by the authority within 60 days from the date of such request) is required to access the records themselves. In the event the authority fails to file for such court order within the stipulated period, or if court order is denied, the service provider must protect the confidentiality of the connection records.</span></div>
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<div>Though initially excluded from the <em>Marco Civil</em>, the current draft passed by the Chamber of Deputies requires Internet application providers (such as Google or Facebook) to retain access-logs for their applications for 6 months (Art. 15). Logs for other applications may not be retained without previous consent of the owner, and in any case, the provider cannot retain personal data that is in excess of the purpose for which consent was given by the owner. As for connection records, law enforcement authorities may request a greater retention period, but require a court order to access the data itself.</div>
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<div>These requirements must be understood in light of the rights that the <em>Marco Civil</em> guarantees to users. Art. 7, which enumerates these user-rights, does not however set forth their <em>content</em>; this is probably left to judicial interpretation of rights enshrined in the Federal Constitution. In any event, Art. 7 guarantees to all Internet users the “<em>inviolability of intimacy and privacy</em>”, including the confidentiality of all Internet communications, along with “<em>compensation for material or moral damages resulting from violation</em>”. In this regard, it assures that users are entitled to a guarantee that no personal data or communication shall be shared with third parties in the absence of express consent, and to “<em>clear and complete information on the collection, use, storage, treatment and protection of their personal data</em>”. Indeed, where contracts violate the requirements of inviolability and secrecy of private communications, or where a dispute resolution clause does not permit the user to approach Brazilian courts as an alternative, Art. 8 renders such contracts null and void.</div>
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<div>Most importantly, Art. 7 states that users are entitled to clear and complete information about how connection records and access logs shall be stored and protected, and to publicity of terms/policies of use of service providers. Additionally, Art. 7 emphasizes quality of service and accessibility to the Internet, and forbids suspension of Internet connections except for failure of payments. Read comprehensively, therefore, Arts. 7-15 of the <em>Marco Civil prima facie</em> set down robust protections for private and personal data and communications.</div>
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<div>An initial draft of the <em>Marco Civil</em> <a class="external-link" href="http://www.zdnet.com/companies-brace-for-brazil-local-data-storage-requirements-7000027092/">sought to mandate</a> local storage of all Brazilians’ data within Brazilian territory. This came in response to Snowden’s revelations of NSA surveillance, and President Rousseff, in her <a class="external-link" href="http://gadebate.un.org/sites/default/files/gastatements/68/BR_en.pdf">statement</a> to the United Nations, declared that Brazil sought to protect itself from “<em>illegal interception of communications and data</em>”. However, the implications of this local storage requirement was the creation of a <a class="external-link" href="http://bigstory.ap.org/article/brazil-looks-break-us-centric-internet">geographically isolated</a> Brazilian Internet, with repercussions for the Internet’s openness and interoperability that the <em>Marco Civil</em> itself sought to protect. Moreover, there are <a class="external-link" href="http://www.gp-digital.org/gpd-update/data-retention-provisions-in-the-marco-civil/">implications</a> for efficiency and business; for instance, small businesses may be unable to source the money or capacity to comply with local storage requirements. Also, they lead to mandating storage on political grounds, and not on the basis of effective storage. Amid widespread protest from corporations and civil society, this requirement was then <a class="external-link" href="http://www.zdnet.com/brazil-gives-up-on-local-data-storage-demands-net-neutrality-7000027493/">withdrawn</a> which, some say, propelled the quick passage of the bill in the Chamber of Deputies.</div>
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<div><strong><span style="text-decoration: underline;">Intermediary liability:</span></strong></div>
<div>Laws of many countries make service providers liable for third party content that infringes copyright or that is otherwise against the law (such as pornography or other offensive content). For instance, Section 79 of the Indian Information Technology Act, 2000 (as amended in 2008) is such a provision where intermediaries (i.e., those who host user-generated content, but do not create the content themselves) may be held liable. However, stringent intermediary liability regimes create the possibility of private censorship, where intermediaries resort to blocking or filtering user-generated content that they fear may violate laws, sometimes even without intimating the creator of the infringing content. The <em>Marco Civil</em> addresses this possibility of censorship by creating a restricted intermediary liability provision. Please note, however, that the bill expressly excludes from its ambit copyright violations, which a <a class="external-link" href="http://infojustice.org/archives/31993">copyright reforms bill</a> seeks to address.</div>
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<div>At first instance, the <em>Marco Civil</em> exempts service providers from civil liability for third party content (Art. 18). Moreover, intermediaries are liable for damages arising out of third party content <em>only</em> where such intermediaries do not comply with court orders (which may require removal of content, etc.) (Art. 19). This leaves questions of infringement and censorship to the judiciary, which the author believes is the right forum to adjudicate such issues. Moreover, wherever identifying information is available, Art. 20 mandates the intermediary to appraise the creator of infringing content of the reasons for removal of his/her content, with information that enables the creator to defend him- or herself in court. This measure of transparency is particularly laudable; for instance, in India, no such intimation is required by law, and you or I as journalists, bloggers or other creators of content may never know why our content is taken down, or be equipped to defend ourselves in court against the plaintiff or petitioner who sought removal of our content. Finally, a due diligence requirement is placed on the intermediary in circumstances where third party content discloses, “<em>without consent of its participants, of photos, videos or other materials containing nudity or sexual acts of private character</em>”. As per Art. 21, where the intermediary does not take down such content upon being intimated by the concerned participant, it may be held secondarily liable for infringement of privacy.</div>
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<div>This restricted intermediary liability regime is further strengthened by a requirement of specific identification of infringing content, which both the court order issued under Art. 20 and the take-down request under Art. 21 must fulfill. This requirement is missing, for instance, under Section 79 of the Indian Information Technology Act, which creates a diligence and liability regime without requiring idenfiability of infringing content.</div>
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<h3><strong><em>Conclusion:</em></strong></h3>
<div>Brazil’s ‘Internet Constitution’ has done much to add to the ongoing discussion on the rights and responsibilities of users and providers. By expressly adopting protections for net neutrality and online privacy and freedom of expression, the Marco Civil may be considered to set itself up as a model for Internet rights at the municipal level, barring a Utopian bill of rights. Indeed, in an effusive statement of support for the bill, Sir Tim Berners-Lee stated: “<em>If Marco Civil is passed, without further delay or amendment, this would be the best possible birthday gift for Brazilian and global Web users.</em>”</div>
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<div>Of course, the <em>Marco Civil</em> is not without its failings. Authors <a class="external-link" href="http://infojustice.org/archives/32527">say</a> that the data retention requirements by connection and application providers, with leeway provided for law enforcement authorities to lengthen retention periods, is problematic. Moreover, the discussions surrounding data localization and a ‘walled-off’ Internet that protects against surveillance ignores the interoperability and openness that forms the core of the Internet.</div>
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<div>On the whole, though, the <em>Marco Civil</em> may be considered a victory, on many counts. It is possibly the first successful example of a national legislation that is the outcome of a broad, consultative process with civil society and other affected entities. It expressly affirms Brazil’s commitment to the protection of privacy and freedom of expression, as well as to Internet accessibility and the openness of the network. It aims to eliminate the possibility of private censorship online, while upholding privacy rights of users. It seeks to reduce the potential for abuse of personal data and communication by government authorities, by requiring judicial authorization for the same. In a world where warrantless government spying extends across national border, such a provision is novel and desirable. One hopes that, when the global Internet community sits down at its various fora to identify and enumerate principles for Internet governance, it will look to the <em>Marco Civil</em> as an example of standards that governments may adhere to, and not necessarily resort to the lowest common denominator standards of international rights and protections.</div>
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<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/marco-civil-da-internet'>https://cis-india.org/internet-governance/blog/marco-civil-da-internet</a>
</p>
No publishergeethaPrivacyFreedom of Speech and ExpressionData ProtectionNet NeutralityInternet Governance2014-06-19T10:38:10ZBlog EntryCDT Provides Answers to Questions on Internet Neutrality
https://cis-india.org/internet-governance/blog/cdt-internet-neutrality
<b>Pranesh Prakash of CIS asked David Sohn of CDT a few pointed questions on the emerging hot topic of 'Internet neutrality', and received very useful responses. Those questions and Mr. Sohn's responses are documented in this blog post.</b>
<p>As part of the Centre for Democracy and Technology's (CDT's) excellent "<a class="external-link" href="https://www.cdt.org/ask">Ask CDT</a>" initiative, we were provided the opportunity to clear up some of our doubts around "net neutrality" (which CDT prefers referring to as Internet neutrality rather than network neutrality) by asking an expert: David Sohn, CDT's Senior Policy Counsel. Reproduced below are <a class="external-link" href="https://www.cdt.org/ask#comment-2015">the questions that I asked</a> (inset and in gray), and <a class="external-link" href="https://www.cdt.org/ask#comment-2024">David's replies</a> (provided below each question). Some of the questions I asked below were doubts that I had, while some others are instances of donning the roles of devil's advocate. We hope this will be helpful in clarifying doubts that some of the readers of this blog have had as well.</p>
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<p><span class="moz-txt-citetags"></span>1a. "As far as I can understand, content distribution networks (CDNs) such as Akamai, don't really fall within your understanding of violations of Internet neutrality. Why not? In what cases is 'spending more to get faster speeds' permitted for content hosts? Since not only specialised companies like Akamai, but regular Tier 1 companies like Level3 and AT&T also engage in CDN-like behaviour, does it make it more liable to illicit/underhand/non-transparent service differentiation techniques?"</p>
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<p>1a. That's correct, CDNs don't violate either Internet neutrality
principles or the FCC's recent rules. I talked about this at <a class="external-link" href="http://www.cdt.org/blogs/david-sohn/neutrality-and-caching">some length
in a blog post a couple years ago</a>. The short
answer is that Internet neutrality does not aim to guarantee that all
online content and services will work equally well, but rather to
prevent ISPs from exercising "gatekeeper" control with respect to their
subscribers. Thus, content providers who have money can purchase various
advantages -- for example, more or better servers, upgraded software, or
caching services from a CDN such as Akamai. Significantly, things like
servers and caching are available from competitive sources; no supplier
has gatekeeper control. In contrast, priority treatment on the
transmission facilities serving any given Internet user is an advantage
that only that user's ISP could provide. Another difference is that when
one content provider purchases caching, it doesn't slow anybody else's
traffic (indeed, it could speed it up, since it may help reduce overall
network congestion). By contrast, when an ISP designates favoured traffic
for priority transmission, non-favoured traffic by definition is
de-prioritized. Think about a line of "bits" waiting in a router queue
-- if you let some bits "cut in line," it inevitably lengthens the wait
for those who don't get to cut.
Given CDT's general comfort level with CDNs and the existence of
competitive offerings in the marketplace, I'm not too concerned about
who provides the service (Akamai, Level3, AT&T, etc.). It doesn't seem
to be a case of the ISP leveraging its unique control over access to
subscribers.</p>
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<p><span class="moz-txt-citetags"></span>1b. "A large part of the claims of Internet neutrality supporters are founded on the basis of 'dumb networks', which can also be seen as a reformulation of the end-to-end principle. A question arises, which is often posed by the likes of Dave Farber, Bob Kahn and Robert Pepper: why should we stick dogmatically to the end-to-end principle when embedding 'intelligence' in the core is/will soon be a viable option <strong class="moz-txt-star"><span class="moz-txt-tag">*</span>without<span class="moz-txt-tag">*</span></strong> jeopardising the simplicity of the Internet? If you are fine with CDNs, then are you fine with a partial supplanting of the dogmatism of the end-to-end principle (because, after all, CDNs are in a sense, intelligence in the core rather than in the edges)?"</p>
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<p>1b. I don't think that supporting Internet neutrality requires a
dogmatic opposition to any and all built-in "intelligence" in the
network. Certainly a strong case can be made for handling certain
network management matters, such as some cyber security issues, at the
network level. I get concerned on neutrality grounds not by the mere
existence of "intelligence" in the core, but by the use of that
intelligence to make judgments and decisions about which applications
and services are most important or most in need of special treatment --
as opposed to remaining application-agnositic or, in the alternative,
leaving the decision to end users. Intelligence that is put in the
service of end users, allowing the users themselves to make judgments
about what to prioritize, does not concern me at all. But if the
network-level intelligence results in broader reliance on centralized
evaluation and categorization of the type or content of Internet
communications, and centralized decisions about what to favor or
disfavor, then I think it poses a neutrality problem. The bottom line
is, the idea that networks could benefit from some built-in intelligence
does not argue for giving ISPs unbounded discretion to discriminate
among traffic. Indeed, a network that empowered users themselves to
determine the relative priority levels of their traffic based on their
individual needs would be far "smarter" than on in which ISPs make
broad, across-the-board choices.</p>
<blockquote>
<p><span class="moz-txt-citetags"></span>2. "What is the bright-line rule that separates some IP-based networks that are 'private' (and hence free to do as they please), and others that are part of the 'Internet' (and hence need to follow Internet neutrality)? Where does IPTV fall? (While answering that question, think not only of present-day IPTV, but keep in mind its potential applications.) Where do 'walled gardens' of the WWW fall?"</p>
</blockquote>
<p>2. In CDT's view, Internet access service provides a general-purpose
ability to send and receive data communications across the Internet.
Other services could be exempt from neutrality rules if they serve
specific and limited functional purposes and have limited impact on the
technical performance of Internet traffic. CDT's comments to the FCC
went into considerable detail -- see, for example, <a class="external-link" href="http://www.cdt.org/comments/fcc-comments-specialized-and-application-openness-principles-mobile-wireless-platforms">the comments we filed
in October</a>.
The FCC rules took a similar but not identical tack, saying that
Internet access services are services that provide the capability to
send and receive data "from all or substantially all Internet endpoints"
or that provide a functional equivalent of such a service. In any event,
the question of how clear the line is between Internet access services
that are subject to neutrality rules and other services that are not is
an important one that will bear close watching over time.
As for IPTV, it offers a specific function -- access to video
programming -- rather than general purpose access to the entire
Internet. So IPTV can be distinguished from Internet service. As for
"walled gardens," it likely would depend how large the garden is. If the
garden seeks to offer a wide enough variety of sites that it can be used
as a substitute for Internet access, then the FCC could choose to apply
neutrality rules. At some point, a garden can become big and
general-purpose enough that it is effectively serving as a non-neutral
version of an Internet access service. That kind of end-run around
neutrality rules shouldn't be allowed.</p>
<blockquote>
<p><span class="moz-txt-citetags"></span>3a. "Should Internet neutrality be kept at the level of non-enforceable (but still important) enunciation of principles, or should they be enforceable laws? In either case, who has the authority to regulate Internet neutrality, given the non-territoriality of the 'Internet' (and especially keeping in mind the direction that ICANN's been taking with things like the Affirmation of Commitments). Why should the FCC have such powers? Why should any American governmental body have such powers?"</p>
</blockquote>
<p>3a. It is important to have some enforceable rules. The FCC enunciated
principles back in its 2005 broadband Policy Statement -- but when the
agency tried to act after Comcast violated those principles, a court
ruled that the FCC had no ability to do so. Enunciated principles are of
little value if ISPs are free to violate them without consequence. For
U.S. Internet users, I think the FCC is an appropriate agency in which
to lodge the authority to police neutrality violations; the FCC has a
long history of working to ensure that providers of physical
communications infrastructure do not abuse their position. And since the
focus is on the provisions of physical communications connections, I
don't the the territoriality issue you raise is a major problem. The
United States has the authority to establish rules for companies
providing last-mile communications links to U.S.-based subscribers. The
Internet is of course a global medium, but the endpoint connections have
a clear geographic location.</p>
<blockquote>
<p><span class="moz-txt-citetags"></span>3b. "If Internet neutrality is really about ensuring fair competition (so an ISP doesn't promote one company's content), then why not just allow competition law / anti-trust law to ensure that fair competition? What are the lacunae in global competition laws that necessitate the separate articulation of 'Internet neutrality' principles/rules?"</p>
</blockquote>
<p>3b. The ability of antitrust law to protect Internet openness is pretty
limited. Absent a clear anticompetitive motive, network operators likely
could curtail Internet openness in a variety of ways without running
afoul of antitrust law. Antitrust’s prohibition against anticompetitive
conduct is a far cry from any kind of affirmative policy to preserve the
Internet’s uniquely open network structure. Nor can antitrust law take
into account the major non-economic reasons for maintaining an open
Internet, such as the impact on independent speech and civic
empowerment. Finally, as a practical matter, antitrust cases tend to
drag on for many years. Individual innovators and small startup
companies – key beneficiaries of Internet openness – are unlikely to be
in a position to bring antitrust cases against major network operators.</p>
<blockquote>
<p><span class="moz-txt-citetags"></span>4a. "One of the strongest arguments of anti-Internet neutrality folks is that adoption of Internet neutrality principles/rules will ensure that it is only the consumers who foot the bill for bandwidth consumption, and bandwidth hogs (like NetFlix) don't ever pay. This, they say, is unfair on consumers. How do you respond to this?"</p>
</blockquote>
<p>4a. First, I question the statement that "bandwidth hogs like NetFlix
don't ever pay." For starters, NetFlix buys a huge amount of bandwidth
connecting its servers to the Internet. Once on the Internet, its
traffic is carried onward pursuant to peering agreements between the
ISPs and backbone providers. When NetFlix traffic volume grows, it may
trigger new payment demands between carriers, as we've seen in the
recent dispute between Comcast and Level3. But the bottom line is,
nobody is forced to carry any traffic they haven't contractually agreed
to handle. Of course, it is true that NetFlix doesn't make payments to
(for example) AT&T for delivering NetFlix traffic to AT&T's customers.
That might seem unfair if you think of NetFlix as a "bandwidth hog"
eating up AT&T's capacity. I believe that is the wrong way to think
about it. NetFlix has no ability to forcefeed traffic onto AT&T's
network. Every bit it sends was requested by an AT&T subscriber. So if
there are "bandwidth hogs" here, they are the end users -- they are the
ones that pull all those bits onto AT&T's network. And they have already
paid AT&T for the ability to get those bits. I would add that when
individual users choose to download huge volumes, I have no problem with
the ISP charging them more.
Second, you suggest that it may be unfair to ask consumers to foot the
full bill for their connectivity. But the Internet is such an open and
innovation-friendly platform precisely because it is so user-driven.
This user-centric focus could change if ISPs start thinking of
themselves as providing services not just to end user subscribers, but
also to non-subscribers such as large online content providers to whom
the ISPs do not directly provide bandwidth. The ISPs would then have
divided loyalties; rather than just focusing on empowering users, they
would be collecting fees to steer users in particular directions. Sure,
in other contexts there are examples of "two-sided markets" in which end
users foot only part of the bill. Newspapers are often cited. But
including paid advertising in newspapers doesn't have much impact in how
the overall product is perceived or presented to users. In contrast,
ISPs charging content providers for special transmission priority would
be akin to a newspaper in which advertisers pay not just to place ads,
but also to influence where the substantive articles appear -- which
ones go on the front page and which on the interior, for example. In
turn, content providers of all stripes would need to think about
striking deals with multiple ISPs -- something that is not necessary
today. In the end, turning the Internet into a two-sided market would
make the medium dramatically less open, less innovative, and less
empowering of users.</p>
<blockquote>
<p><span class="moz-txt-citetags"></span>4b. "If a consumer wants a faster connection (to access content faster), she can get that by paying the ISP more and getting more bandwidth. If a business wants a faster connection (to deliver content faster), it can get that by paying the ISP more bandwidth. However, certain kinds of paying for faster delivery of content are sought to be curbed. Where should we draw that line? And Why should we hold on so dearly to a certain model of accounting for costs?"</p>
</blockquote>
<p>4b. Consumers and businesses should be able to pay their respective ISPs
for more bandwidth. I think that is very different from paying other
people's ISPs for preferential treatment. The latter arrangement turns
ISPs into gatekeepers with respect to their subscribers -- because once
the quality of delivery depends on which content providers have struck a
deal with the subscribers' ISP, every content provider needs to
negotiate with that ISP in order to keep up with its competitors. We
hold on to the Internet's model of accounting for costs because it is
part of what makes the Internet such an open, innovative environment:
content providers and innovators don't face the hurdle of having to
negotiate deals with all their users' ISPs.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/cdt-internet-neutrality'>https://cis-india.org/internet-governance/blog/cdt-internet-neutrality</a>
</p>
No publisherpraneshNet NeutralityInternet Governance2012-06-04T05:56:46ZBlog Entry