Guest Post by Ashwin Murthy
Net neutrality in its most basic understanding is the principle that Internet Service Providers (ISPs) and the Government regulating the Internet must treat all data of the Internet the same. In a situation however where these bodies can increase the productivity of the provision of Internet to the consumer by discriminating between different sites and their data packets, the question arises as to whether this too would be against the principle of net neutrality and thus should be rendered unviable. Perhaps the clearest example of the same would be slowing down certain sites in exchange for speeding up other sites, a process known as throttling and fast-laning. Each site is essentially a collection of data packets (packets of information transmitted via Internet). By distributing data packets of different sites at different speeds, a level of optimisation can be reached that cannot be provided by distributing the data packets of each site at the same speed. Thus more data intensive sites could be given priority over less consuming sites – multimedia sites over text-based sites is the simplest form of distinction to understand. This could be extended even further, where ISPs divide which sites to speed up, thus allowing the consumer to choose which is most beneficial for their personal use. In the Indian context, this could be understood in the example where Airtel would ‘speed up’ all multimedia sites (YouTube, Vimeo, Netflix, etc.) and ‘slow down’ all other sites while BSNL would do the same with news sites (The Hindu, Times of India, Al Jazeera, etc.) and so on.
At first glance, this system seems entirely advantageous to the consumer, allowing a choice in ISP catered to one’s needs and is not explicitly against the definition of net neutrality given by TRAI (after phenomenal participation of activists) in its Prohibition of Discriminatory Tariffs For Data Services Regulations, 2016 (or rather lack of a definition as pointed out by Rajeev Chandrasekhar in his letter to TRAI). This definition merely speaks of differential pricing and tariffs based on content of the sites and not differential speeds. However, the spirit of the Regulations, and net neutrality as a principle, is against such measures of differential speeds in provision of data packets and speed allotted to different websites, a point which TRAI Chairman RS Sharma brought out in his interview with The Wire. Further, the Internet Freedom Foundation (IFF), a group dedicated to working on and protecting network neutrality in India, provided a clearer definition of net neutrality, which is against this measure proposed. It could be argued that abandoning net neutrality in such a scenario is beneficial, however as clearly elucidated by an article by the Indian Express and an article by Save The Internet, net neutrality is a necessity for the Internet to be beneficial for its consumers. Net neutrality has always been a core principle upon which the Internet was created, a point which Web creator Tim Berners-Lee along with the Professors Barbara van Schewick, and Larry Lessig brought out in their open letter to European citizens, and such fast lanes and throttling requires discrimination based on the content of the data packets which is against the principle of net neutrality. TRAI through its regulations has made it clear that it is in fact in support of net neutrality, and thus such a measure is against Governmental policy and rules. The current legal position on net neutrality is rather lacking, restricted to the Regulations made by TRAI, however it could extend far beyond this rudimentary definition.
Furthermore, while this system may appear to be beneficial to the customers, it comes with its own share of problems. When delineating that multimedia sites would be boosted by Airtel, there must be a metric for determining what sites would constitute multimedia sites. In the current context of the Internet, such lines are blurred to the point of non-existence. News channels all contain multitudes of videos while many video sharing sites use large quantities of text in their content, preventing a metric to be easily created. Allowing ISPs, or even the Government, to determine this metric creates a specific mould based on existing, already successful sites. All multimedia sites would have to resemble YouTube or Netflix, creating a lack of diversity available to the consumer and a monopolization of these original already powerful sites that create the mould. New players to the market would be at a substantial disadvantage, having to conform to these moulds and thus would have to compete directly against their already established, bigger competitors, providing the same content to an already saturated consumer looking for something new.
This specific topic of throttling and fast-lanes will be taken up by the Government and the Department of Telecommunications, however there has been no mention of deadlines or time periods within which one could expect change. Organisations such as IFF are pursuing the issue and striving for complete net neutrality, however this leads to the question of whether such an absolute net neutrality is in fact beneficial. Considering that net neutrality may entail certain suboptimal procedures and measures, it could be argued that compromises could be worked out to reach a more efficient version of what we possess today. It is easy to perceive such a measure as positive and beneficial to the consumers; similar debates revolved around Facebook’s Free Basics and Internet.org where, among other things, it was questioned whether net neutrality was of a higher value than providing free internet to millions. However, it must be realised that disposing of net neutrality, apart from losing its immense advantages, also disposes with a fundamental part of why the Internet is what it is – a space for freedom and creativity, a zone for innovation and expression. Throttling is just an example of abandoning net neutrality, however the scope extends far beyond, all in the name of ‘optimisation’ and better performance and delivery of service. This choice between the two is something that the government and citizens must take into account – whether it is better to sacrifice certain principles that should be held as inviolable and paramount in the aims of a high level of optimisation and productivity or to uphold these principles and settle with a perhaps less oiled machine, a machine that does the task yet does not attain its full potential.
Of course, this question isn’t limited to solely net neutrality and the Internet. The Government must make this decision almost on a daily basis. Reservations, pensions, subsidisations – these are all trade-offs between productivity and principles. It is however the prerogative of the Government to uphold these principles, an ideology the Constitution can be seen to maintain, particularly in the Articles 38 and 39. Striving to minimize inequalities, ensuring that material resources of the community are distributed to the common good of all citizens – these are Constitutional provisions that highlight this internal struggle between the two, deciding in favour of principles. It is the Government who creates the principles for the rest of the people to interpret and follow – forsaking equality for higher efficiency is exactly what the government should prevent from happening. The question as to what the Government actually does with respect to throttling as well as other such decisions between principles and productivity shall only be answered in the future, however the power of the people must not be forgotten, particularly in the light of the TRAI Regulations that were spearheaded by citizen participation. It is now as much our prerogative as it is the Government’s to ensure that these principles are upheld and not discarded for promises of productivity.