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.