Intricacies of Net Neutrality and Need for a Constitutional Amendment

After three weeks of intense debate, the discussion on Section 66A has passed onto the next stage of what further action is required to be taken. Further discussions will perhaps resume based on what the Government does or what Supreme Court does suo moto. In the meantime an equally raging debate has emanated on the issue of Net Neutrality.

Knowingly or unknowingly the Supreme Court bench on Section 66A has already declared that any content posted through internet or mobile either on a website or to another person by way of communication are to be considered as “Free Speech” and can be regulated only within the exceptions provided by Article 19(2). The Net Neutrality debate cannot therefore be discussed ignoring this legal position.

A proposal by Airtel to introduce a data plan which may provide incentives for subscribers to visit specified websites with a subsidized cost has sparked off a debate on whether this move is a step towards breaking the net neutrality.

The Airtel proposal is now with TRAI which has called for public views. DeiTY has also formed its own committee to deliberate on the issue and the media is adding colour to the debate.  www.netneutrality.in has taken up a crusade against the proposal and invited the public to submit responses to the consultation paper published by TRAI. The last date for submission of comments is 24th April 2015. Copy of the consultation paper is available here.

A beautiful and informative video has been prepared and posted on you tube by AIB (All India Backchod) that explains the concept.

In short, “Net Neutrality” is a concept which demands that “There should be no discrimination built into access of data on the Internet”.  All data should be considered equal. I should not be asked to pay more for accessing one website than another.

Today it may appear that the Airtel Zero Plan is only a commercial deal between a few websites and Airtel and the consumer will get a lower charge to use some data services and pay higher charges to use some other data services.

But once the idea of charging more for WhatsApp and Skype is admitted, the commercial interests will slowly dig their heels and ensure that all decisions on the Internet would be determined by how much paisa you can pay to the service provider. It will usher in a new era of “Corruption” in the internet access system in which smaller players have no chance to survive.

The Digital divide between the digital haves (established players on the web space who can pay for easy access to their resources by public) and the digital have nots (who cannot pay this additional tax) will widen.

For example, the bandwidth may be diverted by the service providers in such a manner that if you want to visit  a preferred website and pay Rs x per KB of data,  you will pay Rs 2x (or more) per KB of data if you want to visit www.naavi.org or www.prpoint.org. There is no doubt that ICICI Bank will ensure that accessing State Bank of India would be more expensive.

All Government websites will be reduced to second class sites since no body in the Government will take the lead to pay extra to Airtel and other service providers just to keep parity with private sector. Smaller people will lose out because they will not have the resources to compete.

In the end, all “Money Haves” will become “Digital haves” and create a cartel. If anybody expects that consumers will benefit by being able to visit some websites for free or at below par rates, they will be fools. For the business, the subsidy they pay to the service provider today is an investment for the future and they will recover far more from the same consumer in some manner even if they have to wait a little to eliminate other smaller players.

Alternatively if every body with money power registers their sites with all the the service providers, for better service to their customers, there will be a new licensing regime managed by the private sector and the consumer will end up picking up higher cost for all the services. This will be a second level domain licensing system which will kill the Internet as we know till today permanently.

In fact, several years ago, a similar attempt was made by Internet Service Providers to block VOIP services. The issue was partially resolved by bringing it under the licensing parameters but the discrimination still persists.

Already this discrimination is being practiced in different forms. One example may be the system of Google Ads where by certain links are placed ahead of  search results. Many Apps run a free version supported by Ads and a paid version where Ads are removed.

The Digital TV transmission is another area where the service providers call the shots and maintain a differential pricing for different channels.

The debate therefore is an intricate battle between free speech advocates and the commercial interests.

In fact some free speech advocates who supported Scrapping of Section 66A as a curb to freedom of speech,  have already switched to  supporting the Airtel Plan on the grounds of “Freedom to do business”.  Commercial interests have a great power to corrupt our long term vision. We need to guard against it.

While we complain about discrimination on the Internet, we must remember that this is the last bastion of the “Equal Rights for All” principle. Though we swear by our constitution and say all Citizens are equal, we find various excuses to discriminate one citizen against the other. The entire system of reservations whether it is based on caste or religion or gender, they are all based on an acceptance that some are more equal than others.

Our Supreme Court swears by Article 19(1) and at the same time allows a Section 498A to be present in our laws which is a monument of gender based discrimination in law. If Airtel announces that they will provide concessions and reservations to certain caste and religion, then all our politicians will start speaking of our Constitution and why net neutrality should not be applied in our country. Even our Courts will uphold such arguments because such discrimination is in built in our constitution which has long given up its principle of “Equality and Justice for all”.

As long as this hypocrisy remains in our system, it is difficult to prevent the gradual breaking down of net neutrality concept.

If we want to preserve the net neutrality, we need to fight for an “Amendment to our Constitution” to incorporate “Access to Internet at a minimum bandwidth as a fundamental right”. Like the thoughts that prevail in some EU counties, Internet should be free and available to every citizen. May be a reasonable cost is acceptable but not with an inbuilt discrimination.

We therefore need to fight the current Airtel plan under three fronts.

The immediate requirement is to get the proposal rejected by TRAI because it is a curtailment of freedom of speech by cost manipulation and anti constitutional under Article 19(1) of our constitution.

Secondly, we need to set up a “Netizens Rights Commission” which is a long standing demand of Naavi.org first raised after the 2008 amendments to ITA 2000 in the context of Section 69A and then again as a “Charter of Demands by Netizens”.

Thirdly the Parliament has to debate a constitutional amendment to incorporate the requirements of the Digital India and the Right of Netizens.

I would invite all the net neutrality protagonists now to come together and start a process for writing a draft  “Constitution for the Netizens of India” which is truly representing democratic principles of “Freedom and Equality for all” which is not present in the current constitution that guides us as Citizens of India. Such a constitution for the Netizens of India can completely ignore the caste, creed and religion of people and treat all Netizens as equal. A template for such a Cyber Democracy was also presented through these columns long time back and have been consigned to the archives. We may revive it now and create a constituent assembly of the Netizens of India to write the Constitution for the Netizens of India. Then probably we will be able to develop a draft which can be integrated into our existing constitution or can be a model on which our existing Constitution can be made a constitution of a “Democratic,Non Discriminatory Society”

Naavi

 

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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2 Responses to Intricacies of Net Neutrality and Need for a Constitutional Amendment

  1. k bhatt says:

    Very correctly pointed out, Sir.
    Infact one of the aspects that was overlooked by me was about the netbanking apps that can be favored over another.
    If the case pointed out by you in the article applies then it would be very embarrassing for our government. that they have in a way hit the axe on their foot.
    Net neutrality must prevail. There is no need for differentiation for any data packet across the network.
    I have read the “consultation” paper by TRAI, its a 118 Page “engineered” document that is tilted to convince the readers that its the telecom companies that are suffering, which is false.
    also i found out a whole chapter on privacy and security which made me laugh at them. Why suddenly ‘they’ are concerned about customer’s privacy from the OTT apps?? firstly they have to check themselves to safeguard customers privacy. It is evident that the executives of these ‘Telcos’ are many times involved in selling the data of the customers. They need to check that first and then point fingers at OTTs. The topic of security and privacy are one-sided and the content has been published without proper research on procedure for posting apps on the ‘app market’ by vendors viz. Android, Blackberry, Apple, Windows Phone.
    Also, a hilarious example on ‘Telesurgeries’ is shown which makes us laugh at them. Businesses are wise enough to get a Leased line if this were to happen.
    In short the paper want to confuse & entangle the reader in the words like ‘regulation’, ‘licensing regime’, etc.
    In short we want a net neutral India.
    i also request to also visit savetheinternet.in
    we can get the ready-made answers of the 20 odd questions posted by TRAI.
    one more useful resource:
    https://medium.com/@sachi_bbsr/the-trai-consultation-paper-was-written-by-the-planning-commission-of-india-f3d04f1cbfa1

  2. k bhatt says:

    TRAI has recently listed all the replies from ‘stakeholders’ on its website, which is a big blunder for the term ‘PRIVACY’
    TRAI showing its concern on PRIVACY in its consultation paper has failed to understand its true meaning, this exposed list of all the email addresses and replies can be found on the TRAIs website.
    A very insensitive move from TRAI, showing it doesnt respect peoples PRIVACY.

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