Net neutrality at a crossroads: why India’s policy process has important lessons for the US

Digital equality demands that access to the internet is seen as indivisible from a democratic internet. Net neutrality is not just about an open architecture, but about genuine egalitarianism – meaning internet access.

Anita Gurumurthy
30 November 2017


Net neutrality: To regulate or not to regulate?. Flickr/ITU Pictures. CC-BY-2.0.The Telecom Regulatory Authority of India (TRAI) has proposed the key principles on non-discriminatory treatment as applicable to Internet Access Services. TRAI’s reiteration of net neutrality assumes special significance for the global discourse on the issue, given the US-FCC’s decision to repeal its existing rules on net neutrality.


Net neutrality and equality of opportunity

The idea of net neutrality suggests the concept of an open internet whose architecture can safeguard and promote equality of opportunity for all. A non-discriminatory internet must promote real-world egalitarianism. The debate on net neutrality is hence primarily about what kind of internet can nurture a fair society. The technical protocols for Internet Traffic Management (ITM) must, therefore, be based on the privileging of public interest considerations in policy processes.

The debate on net neutrality is primarily about what kind of internet can nurture a fair society.

Infrastructure and affordability are two factors that currently make for a huge gulf between the digital haves and have-nots. The Broadband Commission estimates that the internet growth rate in the 48 least developed countries is declining, despite 85% of their population being offline. A sharp stratification of the access experience means that only certain populations manage to have uninterrupted access to high-speed connectivity. One study in the US found that more than half the ‘below poverty line’ households cannot afford the kind of internet access they believe will help them get by and get ahead.

The move to roll back net neutrality in the US must be seen in this context, where internet access is already not created equal. By promoting a binary conception of ‘connected’ and ‘not connected’, the digital divide discourse has, for too long, made it seem like having a mobile is equivalent to digital enfranchisement. However, what is at stake is the equality divide in internet access, conditions that prevent the world’s majority from having an internet-based ecosystem that can transform their opportunity structure.

Revoking net neutrality guarantees and giving telecom service providers (TSPs) / internet service providers (ISPs) the power to control data streams is bound to lead to further distortions in the already wide disparities characterising the access experience. To favour certain content or block or throttle certain others would be tantamount to interfering with the very rationale of the internet to create and promote information democracy.

Digital equality in practice

TRAI’s public consultations have enabled a robust policy debate on various internet-related issues. In the explanatory memorandum to Prohibition of Discriminatory Tariffs for Data Services Regulation 2016, TRAI famously remarked that “internet access is... an 'experience good', which can be understood properly only after being used... Thus, the 'information asymmetry' problem cannot be adequately solved through disclosure or transparency requirements, as many consumers may not be in a position to understand the information being presented to them.” Content and services bundled with connectivity are hence a travesty of the autonomous and unfettered experience of the internet.

Promoting a binary conception of ‘connected’ and ‘not connected’, the digital divide discourse has, for too long, made it seem like having a mobile is equivalent to digital en-franchisement.

Further, delivering a scathing indictment of Facebook’s “crudely majoritarian” lobbying practices in relation to Free Basics, the Indian regulator had reminded Facebook in January, 2016 that the company cannot act as the self-appointed spokesman for its users. Facebook had launched a massive advertising campaign in India, just ahead of the regulator’s consultation on Differential Pricing for Data Services and had also set up an email template promoting Free Basics on its platform that users could auto-forward with their name to the TRAI.

Tactics of persuasion in the narratives against net neutrality, especially in the global south, are based on false theories of choice and market innovation, usually furthered through a some-internet-is-better-than-no-internet (il)logic. TRAI’s notification on Tariffs and Data Services cautions against the risk of allowing TSPs to shape the “knowledge and outlook” of new users through such “select offerings". It notes that “to the extent that affordability of access is... a cause for exclusion”, poor and marginalised users may not be “in a position to migrate (from zero services) to the open internet, if they do not have the resources to do so in the first place". Thus, “provisioning of Internet access to all sections of the population… is a sine qua non for (people’s) digital empowerment”.

Anti-net neutrality arguments effectively hide the fact that big players would like to use ITM techniques to squelch competition and favour certain content, sites and services. (For instance, see a historical account of net neutrality violations in the US). In their market essentialism, such positions obfuscate real policy alternatives for digital equality such as a universal data allowance, which is akin to any basic social welfare claim. For instance, the Indian regulator has in the Recommendations on Encouraging Data usage in Rural Areas through Provisioning of Free Data called for “a reasonable amount of data, say 100 MB per month”, to be “made available to rural subscribers for free." Policy options can also allow TSPs to offer free night time browsing or limited data packs, without free services/content.

Digital equality demands that the idea of access to the internet is seen as indivisible from, and interdependent on, a democratic internet. This means the non-negotiable right to access the internet must be available to all people. In the most recent recommendations issued by TRAI, positive discrimination or exempting “certain ‘specialised services’ as defined by the telecom ministry” is seen as legitimate. Acknowledging that multiple stakeholders have an interest in a neutral Internet, TRAI has also recommended setting up an advisory committee comprising academics, civil society, TSPs and content providers, which can make recommendations to the Authority on developing technical standards, enforcing the principle of non-discriminatory treatment, monitoring Traffic Management Practices etc.

A digitally egalitarian order

In their market essentialism, such positions obfuscate real policy alternatives for digital equality such as a universal data allowance,

The net neutrality debate is an important precursor to other emerging policy issues on digital equality. One such is about the potential anti-competitive effects of allowing differential pricing, and usurpation of the internet by well-established and large content and service providers. The absence of ‘platform neutrality’ is acknowledged as an important regulatory lacuna by TRAI.

Another is about data portability and ownership. Here again, TRAI’s astute observation, as below, scopes an important regulatory area for future policies:

“Most of the cloud-based app's servers are located only on foreign shores. OTTs are not located in the country that they serve. Therefore, real macroeconomic benefits accrue only to the country in which they are located. National governments stand to lose tax revenues since users purchase goods and services from global players rather than local entities. The counter-argument will be to facilitate local app service providers to develop India-specific OTT apps.”

TRAI has also alluded to the information asymmetry between “the consumer and the data user” in the access-for-data regime: the expropriation by corporates of the value of personal data and violation of user privacy.

Ideas of digital equality, as are emergent from policy discourses of a developing country like India, reflect a number of concerns across the layers of the internet eco-system. They not only span individual rights and business interests of domestic or smaller players but also national economic interests. In a recent speech at the Ministerial Forum of the Global Conference on Cyberspace 2017, the Electronics and IT Minister of India asserted this essentially local to global internet policy discourse, underlining that India supports a “digitally egalitarian order” that will lend “weight to those who are digitally deprived and marginalised”, with “logic, reason and moderation."

The evolutionary path of India’s norms development on digital equality is bound to be a highly contested terrain. But it is characteristically distinctive for its debates on an equal and fair internet.

The FCC’s impending repealment of net neutrality seems to eschew any such idealism.

This article was originally published on firstpost.com.

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