[governance] Access at the cost of Net neutrality?

[Guru]

Suhrith Parthasarathy
http://www.thehindu.com/opinion/lead/access-at-the-cost-of-net-neutrality/article7735242.ece

In the Net neutrality debate, there is a conflict between two core 
values: ease of access and neutrality. The ease of access promised by 
applications like Free Basics compromises neutrality and may later morph 
into a method of predatory pricingIf programs that bring access to a 
part of the Internet in the immediate future were to entrench 
themselves, it could eventually lead to telecom companies abusing their 
dominant positionsIn the absence of a specific law mandating a neutral 
Internet, telecom companies enjoy a virtual carte blanche to 
discriminate between different applications. Though they have not yet 
exploited this autonomy fully, they are certainly moving towards that.

Earlier this year, the social media giant, Facebook, formalised a 
partnership 
<http://www.thehindu.com/business/Industry/facebook-rings-reliance-communications-for-free-data-access/article6878396.ece> 
with Reliance Communications that enabled the Indian company to provide 
access to over 30 different websites, without any charge on mobile data 
accruing to the ultimate user. The platform, originally known as 
“Internet.org,” has now been rebranded 
<http://www.thehindu.com/sci-tech/technology/internet/facebook-rebrands-internetorg-platform-as-free-basics-by-facebook/article7686680.ece> 
as “Free Basics,” Facebook announced last month. Its fundamental ethos, 
though, remains unchanged. It allows Reliance’s subscribers to surf 
completely free of cost a bouquet of websites covered within the scheme, 
which includes, quite naturally, facebook.com <http://facebook.com>. 
Mark Zuckerberg, Facebook’s founder, views this supposed initiative as a 
philanthropic gesture, as part of a purported, larger aim to bring 
access to the Internet to those people who find the costs of using 
generally available mobile data prohibitive.

*Neutrality, an interpretive concept*

On the face of it, this supposed act of altruism appears to be 
commendable. But, there are many critics — some of whom have come 
together to launch a website “savetheinternet.in 
<http://savetheinternet.in>” with a view to defending Internet freedom — 
who argue that Free Basics violates what has come to be known as the 
principle of network (or Net) neutrality.

While it is clear to all of us that a notion of Net neutrality involves 
some regulation of the Internet, it is less clear what the term actually 
means. Like any phrase that involves either a moral or a legal 
obligation, Net neutrality is also an interpretive concept. People who 
employ the term to denote some sort of binding commitment, or at the 
least an aspirational norm, often tend to disagree over precisely how 
the idea ought to be accomplished. Tim Wu — an American lawyer and 
presently a professor at the Columbia University — who coined the term, 
views the notion of Net neutrality as signifying an Internet that does 
not favour any one application over another. In other words, the idea is 
to ensure that Internet service providers do not discriminate content by 
either charging a fee for acting as its carrier or by incorporating any 
technical qualifications.

In India, there is no law that expressly mandates the maintenance of a 
neutral Internet. This March, the Telecom Regulatory Authority of India 
(TRAI) released a draft consultation paper 
<http://www.thehindu.com/business/Industry/trai-seeks-views-to-regulate-netbased-calling-messaging-apps/article7039815.ece>seeking 
the public’s views on whether the Internet needed regulation. 
Unfortunately, much of its attention was focussed on the supposedly 
pernicious impact 
<http://www.thehindu.com/sci-tech/technology/internet/policy-proposes-storage-of-all-messages-mandatory-for-90-days/article7674762.ece>of 
applications such as WhatsApp and Viber. “In a multi-ethnic society 
there is a vital need,” wrote TRAI, “to ensure that the social 
equilibrium is not impacted adversely by communications that inflame 
passions, disturb law and order and lead to sectarian disputes.” The 
questions, therefore, in its view were these: should at least some 
Internet applications be amenable to a greater regulation, and should 
they compensate the telecom service providers in addition to the data 
charges that the consumers pay directly for the use of mobile Internet?

If the government eventually answers these questions in the affirmative, 
the consequences could be drastic. It could lead to a classification of 
Internet applications based on arbitrary grounds, by bringing some of 
them, whom the government views as harmful to society in some manner or 
another, within its regulatory net. Through such a move, the state, 
contrary to helping establish principles of Net neutrality as a rule of 
law, would be actively promoting an unequal Internet.

In any event, as things stand, in the absence of a specific law 
mandating a neutral Internet, telecom companies enjoy a virtual /carte 
blanche/ to discriminate between different applications. Though these 
companies have not yet completely exploited this autonomy, they are 
certainly proceeding towards such an exercise. In April this year, 
Airtel announced Airtel Zero 
<http://www.thehindu.com/business/airtel-launches-platform-offering-free-access-to-certain-apps/article7077204.ece>, 
an initiative that would allow applications to purchase data from Airtel 
in exchange for the telecom company offering them to consumers free of cost.

On the face of it, this programme appears opposed to Net neutrality. But 
what is even more alarming is that mobile Internet service providers 
could, in the future, plausibly also control the speeds at which 
different applications are delivered to consumers. For example, if 
WhatsApp were to subscribe to Airtel Zero by paying the fee demanded by 
the company, Airtel might accede to offering WhatsApp to consumers at a 
pace superior to that at which other applications are run. This kind of 
discrimination, as Nikhil Pahwa, one of the pioneers of the Save The 
Internet campaign, has argued, is prototypically opposed to Net 
neutrality. It tends to breed an unequal playing field, and, if allowed 
to subsist, it could create a deep division in the online world. 
Ultimately, we must view Net neutrality as a concept that stands for the 
values that we want to build as a society; it pertains to concerns about 
ensuring freedom of expression and about creating an open space for 
ideas where democracy can thrive. There is a tendency, though, to view 
those who support Net neutrality as representing a supercilious 
position. Such criticism is unquestionably blinkered, but it also 
highlights certain telling concerns.

Telecom companies that wish to discriminate between applications argue 
that in the absence of an Internet that has completely permeated all 
strata of society, an obligation to maintain neutrality is not only 
unreasonable on the companies, but also unfair on the consumer. After 
all, if nothing else, Airtel Zero and Free Basics bring, at the least, 
some portions of the Internet to people who otherwise have no means to 
access the web. What we have, therefore, at some level, is a clash of 
values: between access to the Internet (in a limited form) and the 
maintenance of neutrality in an atmosphere that is inherently unequal. 
This makes tailoring a solution to the problem a particularly arduous 
process.

The Internet, in its purest form, is a veritable fountain of 
information. At its core lies a commitment to both openness and a level 
playing field, where an ability to innovate is perennially maintained. 
It is difficult to argue against Facebook when it says that some access 
is better than no access at all. But one of the problems with Free 
Basics, and indeed with Airtel Zero too, is that the consumer has no 
choice in which websites he or she might want to access free of cost. If 
this decision is made only by Facebook, which might argue that it gives 
every developer an equal chance to be a part of its project as long as 
it meets a certain criteria, what we have is almost a paternalistic web. 
In such a situation, information, far from being free, is shackled by 
constraints imposed by the service provider.

*Laudable end, unethical means*

This is precisely one of the concerns raised by those arguing in favour 
of Net neutrality, who, it is worth bearing in mind, aren’t resistant to 
the idea of a greater penetration of the Internet. Their apprehensions 
lie in companies resorting to what they believe is an unethical means to 
achieving, at least in theory, a laudable end. Accord\\ing to them, 
negating Net neutrality, in a bid to purportedly achieve greater access 
to the Internet in the immediate future, could prove profoundly 
injurious in the long run. Yes, Airtel Zero and Free Basics would bring 
to the less-privileged amongst us some access to the Internet, but the 
question is this: at what cost?

The worry is that if the programs that bring access to a part of the 
Internet in the immediate future were to entrench themselves, it could 
eventually lead to these telecom companies abusing their dominant 
positions. No doubt, as Pranesh Prakash, policy director at the Centre 
for Internet and Society, has argued, it might require a deeper analysis 
to argue convincingly that packages such as Free Basics and Airtel Zero 
require immediate invalidation in their present forms; significantly, 
the former does not demand payments from the applications while the 
latter is premised on such consideration. But, viewed holistically, the 
companies’ actions could potentially be characterised as a form of 
predatory pricing, where consumers might benefit in the short run, only 
for serious damage to ensue to competition in the long run.

It is, therefore, necessary that any debate on the issue must address 
the tension between the two apparently conflicting goals — the 
importance of maintaining a neutral Internet and the need to ensure a 
greater access to the web across the country. Mr. Zuckerberg argues that 
these two values are not fundamentally opposed to each other, but can — 
and must — coexist. He is possibly correct at a theoretical level.

But the history of markets tells us that we have to be very careful in 
allowing predatory practices, devised to achieve short-term goals, to go 
unbridled. As citizens, each of us has a fundamental right to freedom of 
speech and expression. If we were to get the balance between these two 
values wrong, if we were to allow the domination, by a few parties, of 
appliances that facilitate a free exchange of ideas, in a manner that 
impinges on the Internet’s neutrality, our most cherished civil 
liberties could well be put to grave danger.

(/Suhrith Parthasarathy is an advocate in the Madras High Court./)

-------------- next part --------------
____________________________________________________________
You received this message as a subscriber on the list:
     governance at lists.igcaucus.org
To be removed from the list, visit:
     http://www.igcaucus.org/unsubscribing

For all other list information and functions, see:
     http://lists.igcaucus.org/info/governance
To edit your profile and to find the IGC's charter, see:
     http://www.igcaucus.org/

Translate this email: http://translate.google.com/translate_t