Category Archives: Network Neutrality

TRAI’s Consultation Paper on Net Neutrality and the Regulatory Approach to Net Neutrality in India

Net neutrality is the principle of non-discrimination of all data on the Internet, regardless of the Internet Service Provider (ISP). Regardless of the source or content of the data, all data itself must be treated equally. There has been a growing movement for the recognition and acceptance of net neutrality as a principle not just by the people but by the Government itself, leading to the desire for regulations and policies that protect net neutrality. The Telecom Regulatory Authority of India (TRAI) recognising the same, held pre-consultations and drafted a consultation paper on the specific issue of net neutrality.

In this consultation paper the TRAI focused on a few core issues regarding net neutrality specifically in India, that being of the definition and principles of net neutrality, transparency, traffic management and policy and regulatory approaches to the entire issue. The consultation paper serves as recognition of the important legal and policy questions to address as well as to provide a clearer understanding of net neutrality itself. The opinions of the multiple stakeholders, including Telecom Service Providers (TSPs), content providers and academicians, were taken into account as well.

When discussing the policy and regulations approaches that India could take, the consultation paper was interestingly far more ambivalent than in any of the other sections of the paper. The paper provided three different approaches towards regulation: cautious observation, tentative refinement and active reforms towards regulations and laws relating to net neutrality.

There is a larger question first, of whether the government should indeed regulate the Internet and enforce principles like net neutrality. The Electronic Frontier Foundation (EFF) raised this issue when the Federal Communications Committee (FCC) in the United States passed the Open Internet Order of 2010, an order mandating, among other things, net neutrality. Yet, as was pointed out by Pranesh Prakash of the Centre for Internet and Society, there is a need for regulation. It prevents monopolization and aids in ensuring certain goals such as universality and maximum utility. Without regulations, net neutrality in particular would be an ancillary consideration for ISPs, with practices such as throttling more favourably looked upon. There are of course problems with regulation, both in the forms of bias present in the government and that of over-regulation, however with adequate stakeholder representation this can be mitigated. The consultation paper by TRAI has fulfilled this aspect, and the same ideally will strike the correct balance with regards to regulations.

Countries around the world enforce (or don’t) net neutrality in different ways. The United States creating regulations rose from their belief that the internet is a utility and not a luxury (to the point of being court mandated). Their regulations, as with the Open Internet Order, were thus more citizen focused (how effective it is or actually focused on citizen needs is a separate question). Currently however Trump is rolling back any regulations that were unpopular with big telecom companies. The European Union in 2015 ensured net neutrality but it has been criticised for being plagued with loopholes. In China, considering that the regional ISPs are all owned by the government, there is apparently net neutrality ensured by the government.

India on the other hand is caught in a somewhat nascent stage with regards to regulations. Initially there was close to no government action in favour of net neutrality, but on February 8th 2016, the TRAI barred telecom service providers from charging differential rates for data services in response primarily to the actions by Facebook and Airtel, essentially upholding the principle of net neutrality. Yet, in the absence of a legal framework, as pointed out in the consultation paper, there is still scope for violating the principle of net neutrality by private ISPs. It is at this juncture that the consultation paper poses the questions as to what manner of governance would be most suitable.

The current policy adopted by the TRAI, as well as other countries, is to simply wait and watch. The TRAI would simply observe the practices of the service providers, providing them the freedom to take action as they see fit. This is problematic considering that violations occur currently and in the absence of any legal frameworks they can continue to do this unchallenged. Predictability in the form of a lack of retribution leads to further abuse.

The other option identified by the TRAI is self-regulation. Here all licensed ISPs would follow a voluntary form of adherence to the core principles of net neutrality, with the TRAI providing overall guidance, monitoring the ISPs. This sort of model is well practiced in Europe, including in Denmark, Sweden and the UK, however there are indeed pitfalls of this measure as well. The lack of uniformity is a cause for concern, ranging from transparency to traffic management, and thus leads to a lack of optimisation. When taking multiple countries into account, this effect is magnified multifold, especially in Europe with a large number of highly developed small nations. However, this method has had success in Norway. Applying it to India however, much like most other Western concepts applied to India, causes problems due the differences in context. It becomes easier to provide small corporations this power over a relatively small number of people, however in a country as large as India, with a larger number of big corporations, the same becomes far more difficult. This is not to say that it is misguided or impossible, merely that it is not as easy nor may it be as successful as it would have been in Norway.

The TRAI plans to act upon any notification of abuse of net neutrality or discrimination in either of the two options but there are significant problems, some of which the TRAI themselves identified. The first problem the TRAI identified is a failure or delay in identifying cases of discrimination, a problem that is extremely difficult to counter. Users rarely have opportunity to actually identify and understand the discrimination, and bodies like the TRAI do not have the resources to cover the entirety of the nation. The second issue is the lack of power the TRAI itself possesses. In the absence of any legal frameworks, the TRAI cannot unilaterally impose its will with ease. Further, relating to the third problem identified, this lack of law leads to uncertainty, and uncertainty is a disincentive for businesses to enter the market. In addition, the lack of an adequate definition of what net neutrality is as well the limits of what is required in terms of transparency and traffic management. While these are sought to be addressed by the consultation paper, it cannot singlehandedly solve these issues.

The consultation paper provides for a course of action that can be taken in the case of active reforms, primarily in the form of licensing, regulations and legislative changes. Licensing allows for a form of control, as only those ISPs who abide by the standards set out by the TRAI would be provided the licenses. Australia, through the ACMA and Bangladesh, through the BTRC, both provide licenses to ISPs. For licensing to be successful however there must first be an accurate definition and understanding as to what constitutes the core of net neutrality, and thus the limits that must be placed on ISPs to protect the same. Further, licensing all ISPs is a laborious task, and after licensing monitoring is even more difficult. While there is an association for ISPs, it is essentially defunct (as can be ironically seen from their very site). The TRAI simply does not have the resources to look into all ISPs and whether they maintain the conduct required by their license. Further, the TRAI needs some regulatory power in the form of the law in order to actually make decisions or levy punishments. Explicitly laying down what is permitted in a license is only the first step.

Regulations in the form of Quality of Service requirements could lead to a reduction in discrimination on the basis of quality. This regulation could include certain aspects such as preventing throttling and blocking, or other forms of preferential treatment, as well as laying down a particular standard that is to be met, regardless of content. It would also allow for a mandatory level of transparency. While this action is likely to be helpful, it is not the perfect solution. Creating the standard itself is difficult, enforcing it is even more so. It further does not combat the entirety of the discriminations that occur, and acts more as a stopgap.

Legislative changes are the most effective towards attaining active reforms, though as pointed out earlier, providing the government this power is not a unilaterally positive action. Yet if the TRAI has this legislative power to back its actions, or even another external, quasi-judicial body to act in its stead, this would lead to enforceability, leading to a greater incentive to follow the principle of net neutrality.

In terms of regulations and policy approaches, the TRAI sticks to these issues. In the paper, the importance of monitoring is also brought up, however there is a distinct lack of both innovative solutions and a recognition of the specific domestic issues India faces. Instead the paper focuses more on the approaches of foreign countries, hoping that a patchwork solution will work for all.

In conclusion, the paper raises certain questions which are to be answered in future consultations. The questions of which body should be given the power of monitoring and supervision, collaboration with other stakeholders and the manner in which the legal framework should be evolved are all directly relevant and extremely pertinent towards creating an effective upholding of net neutrality. Hopefully, these questions and the multiple issues and problems of the measures raised in the paper will be addressed during the actual consultations on the 15th of February, 2017.

For Further Reading:

IFF Summary on TRAI’s Paper –

Vox – Saving Net Neutrality through Republican Legislation –

International Telecommunications Union – Discussion paper on regulations of Net Neutrality –



Ed. Note.: This post, by Sayan Bhattacharya, is a part of the NALSAR Tech Law Forum Editorial Test 2016.

In the world of technology dominated by a power struggle in terms of presence and absence in data circles, Reliance Jio has probably made the biggest tech news of the year with its revolutionary schemes. By adopting a loss-leader strategy of immediate loss and ultimate dominance, Reliance Jio has promised its subscribers stellar features like free voice calls, extremely cheap data packages, abolition of national roaming  charges and striking down extra rates on national holidays on shifting to its network. This is set to significantly affect competition by taking India’s data scenario from a data scarcity to data abundance mode.

Tech companies were hesitant to hand over consumers too much data till this point since they believed the same would act contrary to their business interests. So intra tech-company competition existed within set boundaries till now.

A long standing argument has been in terms of data inequality, wherein people living in rural areas are greatly disadvantaged due to absence of accessibility to data, presence of high tariffs and lack of initiative. This marked shift is significantly going to  affect this particular section of society. The arrival of data-abundance schemes of Reliance Jio might trigger of the kind of competition needed to make internet more accessible and solve the divide existing in status quo.

The second shift which is less talked about in the classy launch statements is the treatment of these immense amount of data which will be at their disposal, post such a move.  The markets in United States and Europe have been relatively normalised to the idea of data abundance for tech companies in comparison to Indian markets. There also exists a subsequent system of checks and balances placed in the judiciary of these markets to control ethics of data collection like specific privacy laws, special courts, media and NGO sensitisation of existing problems with data collection. Such specific laws and structure is almost non-existent or minimally present in the India which makes such problems harder to deal with.

This article seeks to answer the implications of such a move in terms of privacy of consumer data, regulatory mechanisms and its subsequent impact on the market.

The  major transition when a user shifts from a conventional network to that of a Reliance Jio is in the shift from conventional calling facilities to data calling, wherein Reliance Jio uses a technology called VoLTE to make data calls. This technology is being introduced for the first time here but is already prevalent in European and US markets . These features are different from those available on social media platforms like WhatsApp which have exclusive privacy policies including checks and balances preventing breach of privacy like end-to-end encryptions.

Consequently huge amount of data will now be floating in terms of data calls and  concern is over a third party monitoring private calls. In the world of data, the flow of data is monitored using a technique known as Deep Packet Inspection, which is a form of computer network packet filtering that examines the data part in terms of a packet as it passes an inspection point, searching for protocol non-compliance,viruses, spam, intrusions, Apart from the legitimate inspections, its critique comes in the form of a third party inspection of data which can be grossly misused in terms of:-

  1. Data Snooping and Eavesdropping

  1. Data Mining – The ethics of digging up history of searches in order to use data for unfair advantage of parent companies. The problem with this kind of data history existing is surrounding the fact that algorithms instead of predicting future searches tends to show same results in order to orient users to preferential data. This becomes extremely problematic when it comes to Reliance Jio which aims at achieving a closed ecosystem through its applications thus exploiting net neutrality laws. This was debated extensively in the application of Free Basics of Facebook in which Reliance Jio was a stakeholder.

  1. Internet Censorship – Government intervention to control the flow of data is another concern. In this regard we are essentially concerned with silent monitoring of data to serve government propaganda in order to define what is viewable and what is not.

Further, Reliance Jio tries to incorporate an app ecosystem which comes as a part and parcel with the package which includes JioTV app, a JioCinema app, a JioMusic app, a personal digital wallet,  JioMags and a Newspaper application. The extensive push for a relatively close ecosystem might lead to exploitation of loopholes in Indian net neutrality laws, thus working to a disadvantage for third party. Data Mining techniques might even be used in this regard to identify customer patterns to suit needs of parent company in absence of a strict system of checks and balances as present in countries which have adopted this technology.

Reliance Jio network has worked relatively well insofar as Reliance to Reliance calls are concerned. But when it comes to calls to another operator there have been significantly high cases of call drops reported. Thus promising features intended to incentivise a switch to Reliance Jio network suffers a major roadblock in terms of implementation.

In light of the arguments presented, the shift that has been triggered by Reliance Jio needs an effective system of checks and balances in terms of regulatory measures to ensure the following:-

  • Maintenance of principles of net-neutrality
  • Protection of private consumer data
  • Prevention of privacy breaches
  • Consumer protection in terms of reducing call drops to other operators
  • Prevention of unfair trade practices in terms of data mining to suit needs of parent company

Meet the New Internet, Same as the Old, Old Internet – except its not the Internet (Part III – the Future of Networks)

The roots of the Internet, in Tim Berners-Lee's original proposal. (Image Source:
The roots of the Internet, in Tim Berners-Lee’s original proposal. (Image Source:

This is the third post in this series; the first two, which set the background for the issue, are available here and here.

The question therefore becomes – is it time we look beyond the ‘internet’ as it exists, to newer models of communication? The ‘models’ I refer to here are not absolutely novel – nothing under the sun is. These models still rely on the TCP/IP protocol, still use parts of the ‘internet’, still use the network laid down for it – learn from it, and improve it. These models, in fact, bring to mind the original image that was created of the internet, so much so that we can actually call these models of communication the legacies of the ideas of the ‘original internet’, challenging the dominance of the ‘neo-internet’. So is it time we focus on these models, develop them, and mark the decline of the ‘neo-internet’? Continue reading Meet the New Internet, Same as the Old, Old Internet – except its not the Internet (Part III – the Future of Networks)

Meet the New Internet, Same as the Old, Old Internet – except its not the Internet you know (Part II – The Tangled Wires)

The roots of the Internet, in Tim Berners-Lee's original proposal. (Image Source:
The roots of the Internet, in Tim Berners-Lee’s original proposal. (Image Source:

This is the second in my three-part series on the issue. The first and third parts are available here and here.

Tangle One

I’ll start with a side-note. In public debate, somehow, Network Neutrality ends up being represented as an absolutist concept, as “ISPs should perform no discrimination between the data travelling on their networks”. Now, as welcome an ideal as that is, the problem is that that is not practically possible, mostly because of Quality of Service (‘QoS’) concerns. This, of course, does not mean that Network Neutrality should not exist – there exist multiple proposals that reconcile these concerns with Network Neutrality, an example of the same being the application-agnostic discrimination, put forth by Barbara van Schewick.

Tangle Two

Now, for the core argument, the concerns are a bit technical. A corollary of the Schumpeterian theory is that each and every innovation that breaks a previous monopoly ends up itself being monopolised in the long run. This is what happened with the telephone, the radio, the television, and cinema. This has not technically happened with the Internet (I elaborate on the “technically” below) in some places, an exception that Network Neutrality is credited with. Continue reading Meet the New Internet, Same as the Old, Old Internet – except its not the Internet you know (Part II – The Tangled Wires)

Supreme Court on Non-Discrimination in Call Networks – An Argument for Indian Network Neutrality

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In an incredibly interesting judgement, the Supreme Court has on 30th January, in the case of Cellular Operators Association Of India & Ors. v. Telecom Regulatory Authority Of India & Ors., stated that providing different rates for calls to private Telecom Service Providers in comparison to those for calls to BSNL/MTNL violated of Article 14 of the Constitution of India. What is curious here is the implication that this case might have for Network Neutrality. The following is my argument in the same vein.

In this case, the dispute was regarding discriminatory charges for the same ‘class’ of consumers. That is, consumers were charged more for calls terminating in the BSNL network, than they were for calls terminating on a private telecom network. The argument of the telecom service providers here was that they simply did not have the same direct connectivity with BSNL networks that they had with other private networks. Thus, while calls to other private networks were routed within the state and charged as local calls, calls to BSNL networks had to be routed from outside and had to be charged as STD calls.

The claim of the respondents in this case was two-fold: that the above practice was discriminatory and that it violated of the updated terms of TRAI’s Unified Access License. The second issue here is based on a positive obligation on the Telecom Service Providers to provide non-discriminatory services, which is part of their license. There is no similar non-discrimination clause for the provision of Internet services, and thus there is no parallel positive obligation on Internet Service Providers (‘ISPs’) to provide services on non-discriminatory rates. Therefore that part of the argument, based on an existing legal obligation in the license, cannot be stretched to the Network Neutrality debate. But what is curious here are the principle-based arguments that have been made by the petitioners and, to some extent, accepted by the Court. The relevant part of the judgement therein is reproduced below:

The access providers have option to continue with the existing inter-connected routing of the class of service areas but that cannot be a ground to discriminate, in any manner, between the subscribers of the same class. The Tribunal rightly held that the appellants – service providers discriminated between subscribers of the same class; one on the ground that the call ends with the private parties and another on the ground that the call ends with BSNL/MTNL.  The classification of the subscribers into two categories on the basis of calls made by them from private network to another private network and from private network to BSNL/MTNL network is arbitrary as it fails to satisfy the twin test for reasonable classification laid down by this Court in State of West Bengal v. Anwar Ali Sarkar & Anr. AIR 1952 SC 75.”

The fundamentally crucial part of the above principle is the parallel that can be drawn from the above in the Net Neutrality debate. The Court has here stated, simply put, that the Telecom Service Provider cannot discriminate between its users on the basis of the end network they are connecting to, that being BSNL in this case, and charge them separately for it. And that is exactly the fundamental issue in Net Neutrality, that the ISP should not discriminate between the data travelling on its network on the basis of the end-point of the connection or the type of data being requested, and charge its users separately for it.

Therefore, the same two part test (intelligible differentia and rational nexus) for reasonable classification, and even the non-arbitrariness obligation under Article 14 can be extended to ISPs as well. This being a Constitutional argument, it would be limited to State services, such as BSNL. But the articulation of such a legal principle would still be a huge win for Net Neutrality advocates. Furthermore, a purely principle-based stand can still be made even for private companies, especially following the vein of arguments about ISPs performing a public service laid down by Gautam Bhatia here and here.

The Non-Discrimination Clause

Furthermore, the non-discrimination clause in question, reproduced below, is quite similar to the principle of non-discrimination articulated under Article 14. Therefore, the principles for an interpretation thereof could be extended to the Article 14 jurisprudence itself.

2(k)Non-discrimination means that service provider shall not in the matter of application of tariffs, discriminate between subscribers of the same class and such classification of subscribers shall not be arbitrary.

Clause 6. Non-discrimination: No service provider shall, in any manner, discriminate between subscribers of the same class and such classification shall not be arbitrary.”

The main issue here, then, is the lack of any such legal obligation on Internet Service Providers.

An Indian version of Net Neutrality

Furthermore, this case is important in one more regard – in their arguments against Net Neutrality, the Cellular Operators Association of India (‘COAI’) had stated that Net Neutrality is a foreign concept, not an Indian concept, as reported by Medianama here. This judgement provides quite a clear argument for the fact that the non-discrimination principle and the arguments underlying Net Neutrality are quite similar, and that the non-discrimination Net Neutrality argues for is quite evidently an ‘Indian concept’ as well. In fact, we can arguably have an even stronger articulation of the Net Neutrality principles under the non-discrimination and free speech jurisprudence than the United States does, especially given the turmoil this issue has faced there recently.

Net Neutrality Violations in India: On BluWiFi and OTT Services

I have written some posts about Net Neutrality before, here and here (the second is the 101). And recently, the now-aborted Airtel VoIP plans has kick-started serious discussions on the topic by TRAI, prompting the regulatory agency to issue a statement saying it will be releasing a consultation paper on the issue soon.

But it would seem that Airtel is not the only ISP that openly violates Net Neutrality in India. Interestingly, this Reddit thread brings to our attention the service terms of an Andhra Pradesh ISP BluWiFi’s Ultraband service. The relevant part here is their section on Peer-to-Peer connections, reproduced below:

Peer2Peer Service is sold seperately. Meaning a single account can be billed for additional P2P bandwidth. For Example, If you have bought a 2Mbps Internet Service from us, you can buy additional bandwidth for P2P dedicated services, say 512Kbps (or as deep as your pocket allows). So your total bandwidth will be 2.5Mbps but you will be able to browse or web download only for 2Mbps and use Peer2Peer for 512Kbps. We understand that the 30% populus may not thank us but we are sure the rest 70% will.

As I’ve mentioned before, the core, broad principle of Net Neutrality is that all data on the internet should be treated equally, and no specific types of data should be discriminated against. And this simple principle applies to peer-to-peer connections as well. (These connections are separate from the ‘peering’ process, which has been explained in detail in this WIRED post.)

The last line of the passage quoted above indicates that the ISP is doing this in order to manage its bandwidth for better Quality of Service (‘QoS’) for it users; i.e., traffic management. Now, in the case of traffic management, certain restrictions are allowed – but that is only in the most exceptional of cases, and even so, they must be proportionate, temporary, targeted, transparent. And blocking or discriminating against an entire class of communications services (i.e., p2p communications) clearly does not satisfy any of these requirements, except for ‘transparency’. This goes entirely against the ‘best effort’ and ‘end-to-end’ principles that are part of the foundations of the Internet. Moreover, such restrictions are actually not even necessary for good QoS!

And despite their infamy for their use in piracy, that is exactly what p2p connections are – a type of network, a connection model, with uses that go far beyond piracy. Skype uses the technology, Adobe uses it, until recently Spotify used it. And even torrents, one of the most popular services relying on p2p, have quite a few legitimate uses. In fact, just last year, Thom Yorke made up to $20 million from sales of his music through torrents. (A post on alternative economic models for content distribution which account for the internet will be following soon).

Therefore, the exceptions allowed to Net Neutrality for traffic management are just that – exceptions, and not the broad rule. They need to be very narrowly tailored, not broadened to an entire method of internet-based communication, that being p2p in this instance. Allowing any broad deviations from the above rule directly opens the doors for exactly the same problems that the debate on Net Neutrality has focused on right now – companies like Airtel will then inevitably claim that VoIP and Video Calls require higher bandwidth, and therefore need to be separated from run-of-the-mill mobile internet data.

Furthermore, this is not even limited to Airtel and BluWiFi either – these small but devastating violations of the net neutrality principles are prevalent in the Indian telecom companies. The perfect example of this is series of ‘packs’ (I would be grateful if someone can point out the original author of the linked information) for Over-The-Top-application-specific mobile internet services, such as WhatsApp, that have been launched by multiple telecom companies. These packs are clearly on the same level as Airtel’s separate mobile internet packs for VoIP services, and violate net neutrality principles just as much.

Admittedly, India does not have any net neutrality law right now. But even so, these practices result in excessive power in the hands of the ISPs, and the creation of bias against any services that make legitimate use of p2p connections and the OTT services they affect. As such, they hamper innovation in these sectors and create an anti-competitive environment – exactly the sort of issues Net Neutrality is supposed to prevent.

My thanks to Swaraj for bringing this issue to my attention.

Facebook, ‘’ and the Ignored Questions of Civil Liberties

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 Earlier yesterday, Facebook founder Mark Zuckerberg met with the Indian Prime Minister Narendra Modi and Minister of Communications and Information Technology Ravi Shankar Prasad (who curiously also holds the Ministry of Law and Justice portfolio). The Facebook CEO was in New Delhi on the 9th and 10th of October for the summit.

It is not a surprise that much of Zuckerberg’s visit focused on the topic of ‘’, which is a not-for-profit partnership set up last year by Facebook along with mobile phone technology providers Ericsson, Mediatek, Opera Software, Samsung, Nokia, and Qualcomm which aims to bring affordable Internet access to everyone. In fact, the most quoted part from his visit seems to be his statement that “Internet connectivity can be now considered as a human right”. And there are actually multiple quotes and articles on this issue. Unlike Vadodara, Zuckerberg’s visit has been covered in mainstream media. But an actual scrutiny of the issues raised therein and their consequences seems to be lacking. Continue reading Facebook, ‘’ and the Ignored Questions of Civil Liberties

Internet Rights in Africa: A Comment

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The Internet is an enabling space. It provides us with the realization of our basic human rights, including the right to freedom of expression, opinion, thought and belief. In this blog post, I have tried to give an overview of the recent developments with regard to the Internet rights in Africa.

Continue reading Internet Rights in Africa: A Comment

On the Need for Network Neutrality

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(This post was published earlier on SpicyIP)

Network Neutrality

The debate around Network Neutrality is a decades old debate, but it is not any less relevant for it. The idea of ‘Network Neutrality’ is, simply put, that ISPs do not price-discriminate between their consumers. Thus, under the Net Neutrality regime, an Internet Service Provider (ISP) cannot charge different consumers different prices for different speeds, shifting those that pay more to the ‘fast lane’ and the others to a ‘slow lane’. This is especially relevant in the case of service providers which rely on the internet to reach their customers, such as Google, Amazon, YouTube, Hulu, Netflix, et cetera. The argument made in favour of Network Neutrality is that this model is the only way to ensure the innovation and openness that the internet is known for, and one of the core ideologies that stands in the way of the internet following the path taken by other innovations such as the radio, the television, and the phone, and ending up as an integrated and essentially monopolised and commercialised technology. The argument made by the ISPs, against Network Neutrality, is that without the freedom to charge higher prices for faster services, they have no incentive to upgrade their infrastructure to provide for faster services. And even before that, they argue that the network neutrality system does not allow them to fully capitalise on their existing infrastructure itself, something they have expended immense amounts of capital on.  Continue reading On the Need for Network Neutrality