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)
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.
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)
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.
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.
(Image Source: https://flic.kr/p/4W8mW)
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 Internet.org summit.
It is not a surprise that much of Zuckerberg’s visit focused on the topic of ‘Internet.org’, 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, ‘Internet.org’ and the Ignored Questions of Civil Liberties
(Image Source: https://flic.kr/p/ciEBXf)
(This post was published earlier on SpicyIP)
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