Originally Published 2014-08-12 00:00:00 Published on Aug 12, 2014
With India seeking to connect the next billion, and becoming a key player in the global Internet debate, it is important to have clearly formed domestic policies. The combination of regulatory interest, corporate opposition and constitutional rights suggest that the time is right for a nuanced debate on net neutrality in India.
Exploring net neutrality

The concept of net neutrality stipulates that all data on the Internet is to be treated equally by carriers. The idea of net neutrality springs from the concept of ’exchange neutrality’ between telephonic networks after the invention of the automatic telephone exchange. This allowed customers using any telephone line to call any other, regardless of which network operator was managing the line. While the Internet owes much - including early infrastructure - to its elder cousin, the telephonic network, it is difficult to transpose principles from one to the other. Unlike the telephones of old, the Internet is no longer a single-service platform with a consumer/provider model. There are different types of data on the Internet, ranging from simple web-pages to interactive services, video streaming and more. This has led to the argument that there could be a ’hierarchy of data’ online, with certain types of data treated differently or prioritised.

In the United States, since Verizon v FCC overturned the net neutrality rules that the Federal Communications Commission (FCC) had put in place, both consumer advocates and content-creating companies have argued that losing net neutrality rules will mean the emergence of ’fast lanes’ which will favour the rich. These fast lanes would give preferential treatment - like faster streaming speeds - to the content of companies who can afford to use them.

Proponents of net neutrality are divided, however, on the question of whether or not the Internet is a public good and whether or not access to the Internet should be a fundamental right. One of the central arguments in favour of making Internet access a fundamental right is that it provides a crucial platform to other rights such as freedom of speech, freedom of the press and freedom of assembly. This is particularly relevant given the ubiquity of the Internet in all aspects of modern life and across platforms.

The Internet has been compared to the electric grid to emphasise its importance to innovation and progress in the 21st century, with the suggestion that if the electric grid had not been neutral, many would have been priced out of science and invention.

Any attempt to bring the Internet under tighter government regulation can be presented as governmental overreach, particularly if the legislation was written for older technology. The question of how to classify broadband - as an information service, a telecommunications service, a cable service, or a public utility - has plagued the net neutrality debate.

The idea of government control of the Internet is particularly sensitive given recent controversies surrounding intelligence-gathering. The matter is further complicated because the Internet itself has no owner, but the various hardware and software components of the Internet do are owned by different parties with certain intellectual property rights.

Free enterprise is another principle to contend with. Internet service providers (ISPs) have paid to develop and maintain the infrastructure that provides the Internet, and bandwidth is costly. ISPs argue that they should be able to recoup those costs by charging those who use more. Some data types - a prominent example being video streaming services - consume much more bandwidth than others, and as such ISPs have to cover those costs; their options are to charge consumers more or to charge content providers for transmitting the data.

One problem with this argument, particularly in developing countries, is that many ISPs also have other business interests, and the potential for conflict and censorship arises. If an ISP also provides international calling services, then it makes sense for the ISP to discourage the use of Skype; if they provide video broadcast services, why promote online streaming? Especially in developing countries, where content is increasingly provided online rather than through ’traditional’ media, there is a risk of content being controlled by the gatekeepers of the Internet.

A lot of Internet usage in developing and emerging markets takes place on phones. This has led carriers to team up with content providers to create limited-access internet plans, so-called ’walled gardens’. Google Free Zone and Facebook Zero are two such examples, whereby customers of participating networks can use limited Google or Facebook services for free. These plans may be offered as a way to entice customers to use more data, and by doing so move to a more expensive plan. It is a costly gamble for the network provider, as Facebook at least is not covering the cost of the free data, meaning the network provider must do so. However, network providers need these content services, because they are increasingly what attract customers rather than traditional voice and text plans.

India currently has no law on net neutrality, and the Telecom Regulatory Authority of India, while supporting non-discrimination in principle, does not currently enforce it. While in general Indian ISPs adhere to the net neutrality principle, there have been instances of certain types of traffic being slowed down by Indian ISPs, without the knowledge of customers. The TRAI had noted the importance of net neutrality and the risks of ISPs controlling content in a 2006 consultation paper.

Vodafone India, Airtel, Aircel and other providers have indicated a desire for revenue-sharing agreements with content providers like YouTube and Facebook, a view also shared by the Cellular Operators Association of India (COAI).

The Supreme Court of India held in LIC v Manubhai D Shah that Article 19(1)(a) - the right to freedom of speech and expression - requires an inclusive public environment, following the argument that constitutionally guaranteed free speech is of little use if it is limited by private parties. If influential parties can squeeze smaller competitors into slower Internet lanes, they gain the ability to silence debate and control views undemocratically. Analysts have suggested that protecting freedom of speech is one of the best arguments for net neutrality in India.

With India seeking to connect the next billion, and becoming a key player in the global Internet debate, it is important to have clearly formed domestic policies. The combination of regulatory interest, corporate opposition and constitutional rights suggest that the time is right for a nuanced debate on net neutrality in India, with eventual regulation balancing the needs of providers and consumers who are both increasingly reliant on the Internet.

(The author is a Research Assistant at Observer Research Foundation, Delhi)

Courtesy: ORF Cyber Monitor, August

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