Telegraph Act amendments must protect net neutrality #Savetheinternet

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Recent news report have said that the Telegraph Act, 1885 will be updated to include net neutrality considerations. Last year, TRAI had released its final consultation paper on ‘Traffic Management Practices and Multistakeholder Body for Net Neutrality’ after extensive consultations. Those recommendations are yet to be operationalised, while ISP continue to be arbitrary in their adherence to net neutrality guidelines. In light of this, we have written to the DoT highlighting key issues that still persist. We also provided our recommendations for addressing these issues, in the hopes that they shall be considered by the Ministry while drafting the new bill.

Background

India has experienced a significant amount of market concentration among internet service providers (ISPs). As per TRAI’s Telecom Subscription Data for January 2021, as of January 31st, 2021, 95% of the all-India market share for broadband services is captured by 3 service providers - Reliance Jio (54.51%), Bharti Airtel (24.37%), & Vodafone Idea (16.20%). By comparison, BSNL has only a 3.52% share in broadband services. Apart from any concerns about oligopolistic tendencies and market competition, such a situation may have a deleterious effect on the implementation of net neutrality, as those players who have captured a high share of the market may be less liable to account for such concerns.

In a pleasing turn of events, recent media reports have stated that the DoT (Department of Telecommunications) is planning to update the Telegraph Act, 1885, especially with regards to issues such as net neutrality. This is a good move, as it is important to update India’s regulatory framework to take into account modern considerations of internet technologies and digital infrastructure. However, India's net neutrality regulation apparatus has seen a considerable amount of vacillation over the years, with the tensions between 1) a government trying to impose a regulatory framework, 2) an industry trying to evade responsibility and pushing for 'soft touch regulation', and 3) a civil society trying to ensure a progressive implementation of net neutrality leading to a large amount of back and forth. In between all of this, key concerns have not been addressed and errant behaviour has been allowed to become the norm. We detail some of these issues below.

Arbitrary blocking and a lack of transparency

On July 31st, 2018, the DoT formalised TRAI'S recommendations on network neutrality dated 28 November, 2017. The DoT amended various telecom licenses, imposing the principle non-discriminatory treatment of internet traffic as a licensing obligation on internet providers. “Discriminatory treatment" has been clarified to include practices like blocking, degrading, slowing down or granting preferential speeds/treatment to any content.

However, despite these clear regulatory requirements, ISPs have still continued to discriminate against certain types of internet content and block them with impunity. These instances conform with observations from a larger study published by the Centre for Internet and Society which was published on January 17, 2020. In it researchers found that the website blocklists of licensed internet service providers (ISPs) across India are widely inconsistent with one another, suggesting that a larger pattern wherein internet providers are either a) not complying with blocking orders or b) arbitrarily blocking websites without legal orders.

IFF’s net neutrality violation tracker, which allows people to submit reports of potential net neutrality violations, has received 1,459 reports since April 2020, with 46 reports from the start of the year itself. These reports are consistent with the earlier study and indicate a wide range of websites and internet services being blocked by ISPs.

Additionally, TRAI’s 2017 recommendations on Net Neutrality stated that blocking requests be initiated in accordance with the law. Under section 69A of the Information Technology Act, 2000, a Central or a State government can block access to a website on grounds such as “interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order”. Now, in its decision in Anuradha Bhasin v Union of India, dated January 10, 2020, the Hon'ble Supreme Court mandated (para 152(a)) that all orders which block people's access to the internet be published for the general public. However, such orders are not easily accessible, with many orders becoming publicly available only after being released by whistleblowers. This results in a significant lack of transparency and accountability.

The TRAI's recommendations

On September 22nd, 2020, TRAI had released the final version of it’s consultation paper ‘Traffic Management Practices and Multistakeholder Body for Net Neutrality’.  These recommendations included:

  1. Forming the multi-stakeholder body: The DoT must constitute the multi-stakeholder body as recommended in the consultation paper, keeping in mind concerns about industry capture highlighted above.
  2. Creation of reasonable TMP repository: Once the multi-stakeholder body has been set up, the DoT must, together with the body, create a list of suitable TMPs that meet global standards. The DoT must also help to define the narrow and specific set of conditions in which set TMPs may be deployed.
  3. Transparency and accountability with respect to deployment: The DoT, along with the multi-stakeholder body, must specify accountability and transparency measures for ISPs to adhere to when deploying TMPs. This would involve notifying users about all instances of TMP deployment in a suitable manner as described above, maintaining detailed records about each  instance of deployment, and creating a forum for grievance redressal with respect to the deployment of TMPs.

The key recommendation here is the multi-stakeholder body that will ensure that ISPs will adhere to net neutrality obligations. Without an oversight body to not only frame context specific regulations but also ensure their enforcement, ISPS may continue to act in an arbitrary and discretionary manner as demonstrated above. Thus, the need of the hour is for the DoT to create and publicly disclose timelines for the implementation of the recommendations laid down by the TRAI in their consultation paper.

Our recommendations

During the consultation process last year, we provided our comments, counter-comments, and a supplementary submission on TRAI’s consultation paper ‘Traffic Management Practices and Multistakeholder Body for Net Neutrality" (you can read our summary of the paper here). We have also written to the DoT and TRAI asking them to protect net neutrality during the COVID-19 pandemic. Our submissions largely rely on the following proposals:

  1. A strong and independent multistakeholder body: The multistakeholder body recommended by the TRAI must be diverse and include a proportionate number of representatives across TSPs, ISPs, small content providers, large content/application providers, civil society, think tanks, consumer advocacy groups, legal experts, free speech scholars. This shall prevent industry capture and allow for the expression of user-centric and legal perspectives. Additionally, the body must also be used as a forum to handle private complaints of net neutrality violations in a streamlined and transparent manner.
  2. Tools for monitoring and assessment: The TRAI must identify and promote global and local standards for tools to assess Traffic Management Practices (TMPs) and reduce information asymmetries. Such tools must go beyond simply measuring network speed and instead evaluate a larger set of technical characteristics.
  3. Narrow deployment of TMP exception: TMPs must only be employed in instances of congestion and threats to network integrity and security. Any reasonable deployment of TMPs must meet the following criterion: 1) must be used only in appropriate circumstances (such as congestion), 2) must be as application agnostic as possible, and 3) must only apply to rules against blocking and discrimination.
  4. Transparency and Accountability: All ISPs must disclose instances of deployment of TMPs that must be 1) comprehensive, 2) transparent, and 3) easily comprehensible. All formal complaints against ISPs must be forward to TRAI (or to an appropriate authority such as the multistakeholder body) and must be displayed in a detailed manner on a centralised database. Public campaigns to increase user awareness must be undertaken in partnership with civil society.

Additionally, there exist existing frameworks for operationalising net neutrality: the Body of European Regulators for Electronic Communications has released guidelines for the implementation of net neutrality frameworks as well as a reference system for users to monitor broadband connections and services and test for neutrality, performance, and quality. The guidelines provide a user-centred approach to implementing net neutrality, and lay down transparent, non-discriminatory, and proportionate rules for the same.

Just a year after implementation, a report on the implementation of the guidelines indicated that, “there is a consistent treatment by NRAs of practices relating to the core principles of net neutrality, such as the ban on blocking of applications and discriminatory treatment of specific traffic”. Furthermore, the guidelines were found to be well suited, “to assist NRAs in performing their tasks of supervision and enforcement as set out in Article 5 of the Regulation.” Thus, we recommend that such a mode be used as a basis for implementing net neutrality enforcements mechanisms in India.

Through this letter, we hope to remind the ministry of the dire need to effectively address long-standing issues and implement a robust net neutrality framework. In the meantime, we we will continue to engage with the TRAI and the DoT to ensure that net neutrality is implemented and ISPs are held accountable. You can do you part and help us by reporting net neutrality violations here.

Important Documents

  1. IFF's Letter to the DoT regarding 'Operationalising the TRAI’s recommendations in ‘Traffic Management Practices and Multistakeholder Body for Net Neutrality’' (link)
  2. IFF’s previous work on website blocking and net neutrality (link and link)