(P.S: This is in continuation of the previous article in the series of discussions held at the 2 day conclave in Delhi on 14th and 15th July 2017 titled “Securing Cyber Space” ).

While addressing the Security issues concerning the Cyber Space, we often come across a debate on infringement of Privacy Rights, Freedom of Speech Rights and also “Net Neutrality”. In all these issues there is a valid point of view on either side and the challenge is to find a balance in the overall context of the society.

Speaking of the “Net Neutrality” issue, we have seen in the recent past two major issues, one regarding Telcos providing access to some websites at no data cost and the second when select type of content providers were invited to host on an exclusive platform of the Telco with free access to its customers. In both cases, data was not charged to specific content usage as against the charges made on use of content outside this privileged set of content providers. It was therefore considered as a violation of the “Net Neutrality” principle and both were dropped.

If we define “Net Neutrality” as not discriminating data usage based on the content, then it may be right in saying that in both cases, certain data was charged less than certain other data and hence there was a violation of the Net Neutrality principle.

However, in my opinion, not all “Net Neutrality Violation” instances are similar and we need to address this issue after analyzing the details. For example, in one of the cases, the TELCO proposed that certain website owners may enter into a contract with the TELCO so that visitors to that website would not be charged for the data by the TELCO. Perhaps we can presume that the website would compensate the TELCO by bearing the cost. This is like “Sponsoring” the visit to the site by the website. In normal world we may have several similar instances.

What however distinguishes an ethical business arrangement of shifting the cost incidence from the consumer to the seller and an unfair practice which creates an entry barrier for one seller against another is how the choice of the privileged seller is made and what are the privileges offered and how transparent the arrangement is from the consumer’s perspective.

For example, if the TELCO formulates a policy of who would be accepted on its privileged platform and also discloses that it has a commercial benefit by way of compensation of the cost from the seller’s side and leaves the decision to visit to the consumer, and if the policy of chosing the privileged seller is non discriminatory, then the arrangement may not be completely unfair.

If however, the TELCO makes it difficult for the users to visit the sites of the competitors of the privileged lot, by either degrading the access speed or otherwise,  then there would be an issue.

In the TV content space, there is already an accepted practice of “Ad Free” and “Ad Supported” broadcasts and if this service is acceptable, there could be an argument that the TELCOs should have a reasonable freedom in designing their service packages without the Net Neutrality debate coming into picture.

In fact an Ad supported content on the web consumes more data and therefore more cost compared to a non ad supported data and if Net Neutrality has to be observed strictly, there would be difficulty in supporting advertisements on the web, particularly those which completely block the content view for some time or those which play videos in the background consuming bandwidth without the consent of the viewer.

In view of the several interconnected issues the “Net Neutrality” objections are to be considered as case specific and they need to be evaluated and monitored on a continuous basis. One of the factors to be considered is whether there is any “Consumer Benefit” in the proposal and whether it can be preserved without discriminating against any seller.

In order to evaluate such proposals, there is a need for a suitable authority or a regulator who can intervene if any service is not fair. No doubt TRAI itself is expected to discharge this responsibility from the side of the business community who wants to use Internet for promoting their business.

When the consumers need to be represented in such decision making, the only instrument could be through a public consultation process that a regulator like TRAI could run. In certain cases, if consumer interests are affected, they are taken up under “Internet as a fundamental Right” or “Privacy and Freedom of Speech is a democratic right” etc through the Human Rights Commission or Activism.

While this mechanism of Human Rights was developed in order to protect the democratic rights of individuals and has been in most cases delivering results, in India we often find that “Human Rights” is meant mostly to protect the rights of Criminals and Terrorists rather than the innocent victims of oppression including falsely accused police officers. The reasons for this are many. Perhaps many of the Human Rights Organziations are under some kind of obligation to international outfits which have a different agenda and hence activism highlights only issues that are not in the national interest of India.

As regards the heads of the Human Rights Commission, who are normally drawn from the Judiciary, the problem is not one of intention but one of understanding the problems of the Net society in the right perspective and reacting in time and properly. We have seen that even alfter 16 years after the passage of ITA 2000, judiciary is yet to come fully appreciate the nuances of techno legal issues. It is not therefore surprising that Human Rights Commission as it exists today may not be able to empathize with the needs of the Netizens appropriately. At the same time, the International Human Rights Law and Practice has developed over a time and got itself entrenched in certain fixed notions which are not easy to change.

It is therefore one of the suggestions that I have proposed for several years that we should develop a “Netizen Rights Commission” first in the Indian Jurisdiction and try to address most of the Cyber Issues affecting the rights of the Citizens of India who also are Netizens in a particular context  through the Netizen Rights Commission.

The thought of “Netizen Rights Commission” as to the scope, constitution, jurisdiction, relation to the current judicial system etc is a matter which requires further debate and examination.

Also whether Netizen Rights Commission at State and National level can substitute the Adjudication system and Cyber Appellate tribunal (Now merged with TDSAT) is a serious legal issue which affects the provisions of the ITA 2000.

But the concept has a good potential to address many of the unresolved issues of Cyber Space and management of the Cyber Society-Meta Society conflicts. It can address Privacy Issues and Data Protection issues including protecting the Indian citizens (which may include Indian registered corporate entities) from unreasonable imposition of foreign laws such as GDPR etc.

I suppose the idea is worth exploring as a part of the larger “National Cyber Security Policy”.

Action Point Summary

The summary of  action points suggested by the undersigned during the session on Civil Society Concerns in the conclave captured in the three articles are as follows:

  1. Civil Society representation in security policy formulation requires representation of a wider sections of the society from across the country and not restricted to the section active on the TV media in Delhi.
  2. Whenever web based public consultations are held based on which decisions are taken, there should be transparency on what was suggested and how they were deliberated by the decision making committee which should be documented in the final report.
  3. Security is of paramount necessity to protect democracy which in turn is responsible for protecting the rights such as Freedom of Expression or Privacy. Hence Internet Shutdown as part of the security requirement has to be tolerated as a necessary evil. However necessary checks and balances need to be built to prevent misuse of the Internet lock down option to preserve freedom of expression as a principle of democracy.
  4. In order to prevent shutdown of critical citizen services dependent on the availability of Internet, technical possibility of segregating essential and non essential services in the data channels need to be considered.
  5. A scheme akin to “Digital Ambulances” may be licensed to carry essential critical data in case where the larger Internet is shutdown for security reasons to block communication through web, e-mail or messaging services.
  6. Digital Ambulance services need to be made accessible on some acceptable form of identity verification through identity gateways using digital signature or e-sign as identity options.
  7. In the longer term the possibility of creating a “White Web” in contrast to the “Dark Web” and the current mixed variety could be considered. While the Darkweb is characterized by total anonymity, the White web would be characterized by Total Identity. The current web is a mixed variety where Pseudonomity works along with anonymity and identity.
  8. Net Neutrality issues are to be considered on a case to case basis with Consumer interest factored in for evaluation.
  9. A “Netizen Rights Commission” may be considered in the Indian context to ensure that the rights of Netizens is taken proper care of with a suitable legal base.

The above suggestions are requested to be considered for accommodation in the recommendations that the Conclave may recommend to the Government.

(P.S: These suggestions are related to one of the sessions that naavi participated on 14th July 2017.  Naavi also participated in another session on Cyber Laws on 15th July 2017 and suggestions thereon would be separately provided in the subsequent articles.)


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