Net Neutrality: The net worth of freedom

The structure of the internet inherently makes it a free and democratic space. It has fuelled innovation, and is used by millions —about 40 per cent of the global population—to express themselves, absorb multiple viewpoints, and, in some cases, dissent and disagree vehemently, not only with one another but also with the governments that structure their lives in the physical world. It has fuelled revolution, allowing the artist Ai Weiwei to protest against the travel ban imposed on him by the Chinese government, by putting up a picture daily on Instagram of flowers in his bicycle basket. Elegant and effective, much like the internet.

The Telecom Regulatory Authority of India (TRAI), however, wants to create fences within this free space and treat each zone of the internet differently. What is at stake is ‘network neutrality’—the idea that telecom companies (telcos) and Internet Service Providers (ISPs), which function as gatekeepers to the web, shouldn’t be permitted to discriminate between different types or sources of content. It is an important idea for all of us, and it is certainly worth your time if you want to engage freely on the internet.

Late last month, TRAI released a ‘Consultation Paper on Regulatory Framework for Over-the-Top (OTT) services’. While posing 20 questions on internet regulation, and giving one short month as response time, the 118-page long paper advocates imposing an unwieldy regulatory framework on internet services (think YouTube, WhatsApp, Skype, Facebook or any other online service), which it refers to using the loaded term ‘Over-the-Top’ services. The paper is a response to sustained complaints from telcos that popular apps like WhatsApp and Skype are eating into their SMS and voice revenues. However, it conveniently glosses over the fact that this shift in consumer preference is creating white-hot growth in revenues drawn from mobile internet plans for the same telcos! One needn’t go further for proof of this than the most recent earnings reports of Airtel and Vodafone, which show impressive growth in revenues from data services (74.3 and 70 per cent, respectively). Clearly, telcos are not in dire straits. So what is motivating them? First, their inability to compete with innovative online services compels them to demand that the regulator hinder their growth. Second, their desire to extract payments from internet companies or consumers of these services, as Airtel threatened to do last December by charging a higher fee for VoIP apps like Skype.

For anyone who has read TRAI’s paper closely, the writing on the wall is clear. It recognises that telcos may also discriminate between different apps or services using subtler mechanisms such as throttling online services that hog bandwidth (like the US- based ISP Comcast did with traffic on the popular filesharing service BitTorrent) or compete with the telcos’ own offerings (imagine your telco slowing down delivery of free WhatsApp messages, pushing you towards expensive, text-only SMS). Or, as with the recent deal between Airtel and Flipkart, telcos may create a ‘walled garden’ of services that users may access free but only include those that can afford to pay a hefty entry fee. The paper clearly shows that TRAI is seriously considering a new regulatory structure for online apps and services that endorses this kind of discrimination by telcos.

If all this sounds scary, it’s just a glimpse of the future that telcos want to create for the internet, where they are free to arbitrarily charge consumers extra fees (above basic subscription charges) for using assorted online services. This is the future that ‘net neutrality’ rules would protect us against, by prohibiting telcos and ISPs from discriminating between different types of content. Net neutrality historically began not as a law or rule, but a core design principle of the internet—that the network would make the ‘best effort’ to transmit all packets of data from origin to destination, regardless of content. But as telcos grow bolder in their intention to stand this principle on its head, many have begun calling for the enactment of net neutrality regulations.

For most of us, it isn’t really the money that is an issue. It is freedom. What net neutrality regulations really seek to protect are two key freedoms cherished by all democratic societies: the freedom to innovate and, more fundamentally, freedom of expression. By ensuring that telcos can’t ‘pick winners’ on the internet by choosing to support some online services while hampering others, net neutrality would ensure a level playing field where startups can go head-to-head with established internet companies in their battle for users. By ensuring that telcos can’t control what we say, see, or hear on the internet, net neutrality would protect the freedom of expression and prohibit private censorship of the internet.

TRAI’s paper shows a worrying sympathy for the telcos’ supposed plight. For example, it repeats the old complaint that while these companies bear the cost of investing in infrastructure to meet demand, online apps and services have no such obligation and should be subject to the same regulatory regime as they are. This argument perpetuates the ludicrous myth that internet access is a zero-sum game between telcos and online services, and misrepresents the regulator’s job, which is to protect the public interest. To argue that online services should be licen-sed like telcos is effectively to penalise services that have nothing to do with telecommunications (like YouTube), simply because telcos are worried about being unable to keep up with demand for—or compete with—the online services that Indian users like to use. If telcos are hamstrung from investing in better networks, the solution isn’t in regulating online services that drive demand for internet access. To use law professor Tim Wu’s analogy, building networks at the expense of network applications is ‘akin to selling a painting in order to buy a better frame’.

The internet isn’t meant to be a golden goose for telcos and ISPs. The structure on which the network is built is a public resource that telcos (as licensees) hold in trust for all of us. This isn’t a novel idea. The Supreme Court actually said this in a decision that telcos would much rather forget—the famous 2G judgment. The principle that the Court has established is that the Government cannot allow the commercial interests of telcos to trump public interest in administering this public resource. That being so, the Government cannot endorse an alteration to the structure of the internet that is to the detriment of consumers merely because telcos claim they are not making enough money.

Let’s now come to grips with why ‘public interest’ hangs in the balance. TRAI’s consultation paper is trying to create a regulatory structure through which private players and (potentially) the executive Government can indulge in content discrimination on the internet. Let’s assume that Open magazine, in keeping with its tradition of brave and unbiased journalism, publishes a piece that implicates telcos in a corruption scam involving the Government. If net neutrality is done away with, it would be possible for telcos to charge subscribers higher rates for accessing the magazine’s web-site, just because they can. Alternatively, it can throttle speeds when a user accesses Openthemagazine.com. Simultaneously, say, Magazine X publishes views that favour telcos and the Government. Access to Magazine X’s website can be made fast and free. In effect, Open will be penalised for its speech in a manner that impacts its readership, while users seeking access to such views will have to either pay extra or suffer slow speeds. This is no different from paying a fine or suffering a disadvantage for wanting to access a particular viewpoint. In this hypothetical case, Open is being arm-twisted into publishing material that the powers-that-be (telcos and the Government) approve of, just as users are being pushed to access the same favoured content. In a world without net neutrality envisioned by TRAI, criticism can be effectively choked, as telcos becomes censors, making it easier, in turn, for the State to censor the web through its control of telcos.

What if telcos say their intention is only to maximise revenue? After all, they may say putting a price tag on certain forms of online speech isn’t censorship but merely a way to pay for the infrastructure that lets users access it. This disingenuous explanation ignores the fact that, for the purposes of the Constitution, a ban is just the same as a monetary levy, so long as the ‘direct effect’ hinders free speech. When market- based methods have the effect of curbing the dissemination of disparate viewpoints (especially when the methods are discriminatory), they violate Article 19(1)(a) of the Constitution of India.

Also, it is our right as citizens to access information on the internet without impediment, and to speak across different online forums without hindrance. All viewpoints and forums for expression are to be treated exactly the same. India’s Supreme Court has clearly stated that when it comes to freedom of speech, ‘it may be the duty of the State to ensure that this right is available to all in equal measure and that it is not hijacked by a few to the detriment of the rest’. In a separate case, the Court also insisted that the public has the right to access differ-ent viewpoints in order for people to have a ‘complete picture before them and not a one-sided or distorted one’. In short, no one should be allowed to game the system and manipulate the ‘marketplace of ideas’.

Thanks to a popular online movement facilitated by Savetheinternet.in, TRAI has been bombarded with emails from ordinary users, opposing the dilution of net neutrality. Some 150,000 people have signed up on the parallel Change.org petition, and the number continues to grow. We hope that TRAI will change track and recommend affirmative net neutrality rules. If so, it will join regulators from other countries (like the US Federal Communications Commission,which recently adopted new net neutrality rules) in helping a global consensus emerge on net neutrality. If, instead, TRAI’s recommendations fructify into regulations that allow discriminatory treatment of content, we hope that the net neutrality movement that has begun on the internet continues to resist it and takes the matter to Court, to safeguard the integrity of the internet as a medium of non-discriminatory creation and expression.

About The Author

Karan Lahiri and Chaitanya Ramachandran

Karan Lahiri is a litigator and Chaitanya Ramachandran a technology lawyer. Both are based in Delhi