Cyber policy: Govt fails to address Net Neutrality issue

The debate on Net Neutrality (NN) seems to have sputtered out like a Diwali sparkler. It generated a lot of heated argument but with little substance. Even the ensuing DOT report was a damp squib, replete with self-righteous quotes but lacking in specifics.

Unfortunately, due to a narrow understanding of the real issue, the discussion was reduced to bickering between the public and mobile/telecom operators, giving the latter a free public platform to highlight their woes. The government, too, seems to have fallen into this trap by handing over the problem to the DOT and the TRAI which are essentially telecom bodies.

The Internet is not just a telecom network. It is a complex multi-layered ecosystem where the network part or the ‘physical layer’ – the wires and hardware providing physical connectivity – lies at the bottom of the hierarchy. On top is the ‘social layer’ wh-ere all the information resides and which is of vital importance to users like you and me. In the middle is the ‘applications layer’ that provides a bridge between the two.

The burst of innovation on the Internet takes place in this social layer which is home to all our activities from social networking to e-commerce to search engines and the myriad app-based interactions. Net Neutrality is about the unfettered functioning of this social layer. That is the true freedom we should be fighting for, and not about which service provider is providing access to what website.

By handing over the problem to telecom bodies, the government has signalled that it can somehow ensure Net Neutrality by regulating Internet Service Providers (ISPs) including mobile operators. In other words, they are seeking to regulate all three layers by addressing only the physical layer where these TSPs/ISPs operate.

No wonder, therefore, that whatever the government has said or done in this regard has generated public and media outcry – be it the ban on pornography or the flip flops on freedom of speech and, more recently, encryption in cyberspace.

Rajya Sabha member Rajeev Chandrasekhar has lamented “the lack of capability within these government departments to deal with the sophisticated and complex issues relating to the fast-changing and disruptive technology space.”

He adds “While governments all over the world are dealing with similar challenges — they have also deployed best minds and leadership to evolve solutions — we seem to continue to rely on bureaucratic knowledge or lack thereof in addressing this complex world of technology.” He is also critical of the “expert committees” set up to address problems such as NN and encryption, and rightly so, if one goes by some of the recommendations that emerged.

Unfortunately, the public perception of NN is also inaccurate, which brings us to the question of ISPs and website access. When Airtel announced its tie-up with various companies via its Airtel Zero plan there was furious public opposition, but nothing happened when Reliance Communication  tied up with Facebook’s Internet.org.

Likewise, mobile operators complain about OTT operators like WhatsApp but are silent about a similar app called Jio Chat launched by Reliance Jio. I believe that products like Airtel Zero and Reliance Jio Chat constitute legitimate business strategy, because similar tactics are commonplace in the real world.

Before you disagree, consider what American ISPs/TSPs are doing: Verizon has a service called Go90 that streams live video including TV; Comcast has its own rival streaming service via its Xfinity high speed cable internet; and Dish TV has launched SlingTV. AT&T has gone a step further and acquired satellite TV company DIRECTV. Should the American public or video streaming firms such as Hulu or Netflix protest this “violation” of Net Neutrality? If in real space, Railways can offer discounted freight charges to its preferred customers, in cyberspace should we prevent Flipkart to buy discounted bandwidth from Airtel?

Facebook’s Internet.org initiative, now renamed “Free Basics”, is another example. A recent article termed it a “Trojan horse”, and many voices are cautioning against enlisting such companies in an indiscriminate push for “Digital India”. They fear these Internet giants will create a monopoly and hold us to ransom.

However, they forget that since the dawn of the PC era, one company – Microsoft – monopolised the computer industry and we could do nothing about it. In fact, Microsoft is credited with having transformed the world. Similarly, Internet.org is actually leading countries like Kenya, Tanzania and Columbia out of digital darkness.

A reality check

I am not suggesting we forget about Internet freedom and give in to commercial interests. On the contrary, I feel we should fight tooth and nail to retain this freedom. Our approach, however, is flawed because it will not stand up to close scrutiny. The correct (and effective) way is to first recognise some realities:

1. Unlike traditional networks like roadways, railways and telephone which are government owned, the Internet is private and pursuit of profit is a legitimate goal for such enterprises. Therefore, while the government is yet to establish a nationwide fibre-optic network, Mukesh Ambani’s Reliance Jio already has one in place which, incidentally, his brother Anil’s Reliance-Comm is planning to tap. We can’t prevent ISPs from exercising such commercially valid options.

2. Our laws apply only within our borders whereas the Internet has no boundaries and is not subject to any universal legal regime. 

3. No matter how much we demonise them, the Internet giants are providing huge value-add to society (imagine a world without Google search). Shunning them is like throwing the baby with the bathwater.

4. Some of these companies are more powerful and resourceful than most sovereign governments; hence it is impossible to regulate them beyond a point. (China is an exception but it lacks net freedom).

Given these realities, an effective cyber policy must address every layer of the Internet, not just the physical layer. It must also acknowledge that the Digital India vision cannot be realised without involving Internet giants. So, instead of shunning them we need to manage them skilfully, free from ill-informed dogma and “command-and-control” mindset. Finally, in cyberspace things evolve very fast with a generation-change happening every six months. Our decision making has to adapt to this pace.

We cannot attain economic supremacy without first attaining cyber supremacy. Are we applying our “best minds and leadership” to shape our cyber-policy? Unfortunately not.

(The writer, an expert in cyberspace law, is Director of Centre for Policy Research on Cyberspace)