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.

December, 2014: Fireworks and more!

December, 2014, has been the month when the Indian community received a multitude of shocks, one after the other and each one more powerful, on the issue of internet-related legal problems.

First, we had the lamentable Uber issue, which was followed by Airtel announcing (and later withdrawing) its VoIP-data plan, which violated Net Neutrality down to the first principle. This also inspired TRAI to work on a consultation on Net Neutrality. Soon after, we learnt that SoI had filed a case against Google for “displaying an incorrect map” of India. And just as the month was wrapping up, Airtel and Hathway accidentally blocked all of imgur rather than just a single image.

The biggest surprise of all, finally and unquestionably, came on New Year’s Eve itself, with the Government blocking 32 websites, apparently for hosting anti-India content from ISIS, and then unblocking four, namely, (gist) Github, Weebly, Vimeo and DailyMotion.

This was also the month where the ShammiWitness twitter account issue came to light, and some very interesting developments took place the cases on Sections 66A, 69A and 74 of the Information Technology Act.

December, then, has been quite the interesting month. We’ve covered the issues involved in the above disputes in detail earlier. Specifically, on the question of blocking websites, I’d refer you to my post here, and Veera’s post here. On the question of net neutrality, I’d refer you to my post here. We will be coming out with comments on the ShammiWitness issue and on Uber shortly.

But it is unarguable that the events of December 2014 have had an immense effect on internet regulation in India, the ripples of which we’ll be dealing with for some time yet. The sad part, though, is the fact that most of these changes seem to indicate that as far as the Internet is concerned we, as a country, are headed down exactly the wrong roads.

The Status of Electronic Surveillance Laws in India: An Overview (Part II)

(Image Source: https://flic.kr/p/6YSTmq)

The following is the last in a series of two posts on the Electronic Surveillance laws in India, brought to us by Anurag Dasgupta, CNLU Patna.

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FEW OTHER STATUTES WHICH AIM AT REGULATING SURVEILLANCE IN INDIA

The Status of Electronic Surveillance Laws in India: An Overview (Part I)

(Image Source: https://flic.kr/p/6YSTmq)

The following is the first in a series of two posts on the Electronic Surveillance laws in India, brought to us by Anurag Dasgupta, CNLU Patna.

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After the wave of liberalisation and globalisation; the demographics of various countries have changed, (for better), such change also includes within itself the technological impetus, which many of the developing countries have not been able to provide with. Crimes are now not restricted to battery and assault, but includes with its ambit wiretapping also. Government too need not place its reliance only on the physical attendance of the police but can very well control or for that matter have surveillance by sitting in front of a computer screen. Hereby under these circumstances, reliance on any of the archetypal methods would spell apocalypse and hence a revamp of technology laws for any country is a must.

Data Retention Protocols: A Critical Appraisal of the Telecom Surveillance Apparatus in India and Abroad (Part II)

The second post in the two-part series on Data Retention laws in India and abroad, by Balaji Subramanian. The first part can be found here.

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In Foreign Lands: US and the EU

Earlier, I’ve given a broad picture of the data retention scenario in India. Now, I attempt to draw a comparison between India and other, more “advanced” jurisdictions such as the US and the EU.

In the US, data retention is conducted voluntarily by service providers, without any statutory imperative. Several prominent voices from law enforcement have advocated the promulgation of laws that enable mandatory data retention and specify the duration, means and extent of such retention. However, these attempts have failed several times, with two federal Bills lapsing.

Data Retention Protocols: A Critical Appraisal of the Telecom Surveillance Apparatus in India and Abroad (Part I)

The following is the first in a two-post series by Balaji Subramanian on Data Retention, a second-year student at NALSAR. Balaji is quite interested in Technology and Cyber Law, and has worked on issues ranging from Cyber Forensics to Data Retention., interning with CIPRA at NLSIU and Tanikella Rastogi Associates on related issues. 

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Descriptively, data retention refers to the gathering and storing of information relating to subscribers’ use of telecommunications networks. This storage happens at a remote location, inaccessible to the user whose activities are the origin of the stored data. Typically, data retention protocols require the continuous collection of certain parameters from internet users and the maintenance of comprehensive records of user activity, in one form or another. Retention can be done at the ISP level, as a commercial decision on the part of the service provider, or at the regulatory level, as a national policy decision on the part of the State in order to achieve larger goals of law enforcement and public order. Over the course of two posts, I will attempt to construct a brief critique of the policies adopted, first narrating the Indian stance and then using contemporary global trends as a yardstick against which this stance can be measured.

Cross Media Ownership in India: Cause for Concern?

The following post is by Shashank Atreya, a student of School of Law, Christ University, Bangalore. He is a founding member of the Committee on Public Policy and Governance, School of Law, Christ University, and has headed research panels drafting suggestions to the Parliament Standing Committee and Law Commission. Shashank is a Media Law enthusiast, and vouches for net neutrality. He brings us a detailed analysis  on TRAI’s recent suggestions on Cross Media Ownership, which formed part of it’s recommendations to the Law Commission of India. 

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The media plays an important and multiple roles in society. The most obvious of these are collection and dissemination of information, communication and entertainment among the people. Further, through its reach to the people the media also transmits social and cultural values and serves as a medium of education. Thus by providing information the media can inspire and generate political social ideas and aid in shaping policy agenda and priorities.

Internet Rights in Africa: A Comment

(Image Source: owni.fr)

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.

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.