In counter-comments to TRAI, the Internet Freedom Foundation and the Centre for Internet and Society argued against telcos getting more flexibility in enforcing Net Neutrality. “We strongly disagree with industry submissions requesting light-touch regulation and excessive exceptions,” IFF said. “It is apparent that such recommendations are essentially negotiating for the flexibility to discriminate between different classes of internet traffic.”
“The regulator should broadly define what comprises reasonable TMPs, and set out clear guidelines which would determine the reasonableness of any method adopted by the ISPs,” CIS said in its filing, endorsing Stanford law professor Barbara van Schewick’s comments. IFF similarly called for “clear and narrowly defined criteria for exceptions to the net neutrality principle to limit misuse”.
Blocking shouldn’t be done based on any legal order
IFF and CIS both stated that site blocking shouldn’t be done on the basis of just any legal order, but only those from DoT under the law. “[T]he relevant authority must recognize the existing legal framework of blocking in India, which is governed by section 69A and section 79 of the Information Technology (IT) Act, and mandate that only blocking pursuant to orders under these sections would comprise as a reasonable form of TMP,” CIS said. The filing cited the inconsistent blocks in early 2019 of Reddit, Telegram and Indian Kanoon, saying that the DoT was not even in the know about why the latter was blocked.
- Specialized services shouldn’t be an excuse: “Specialised services exception can be a loophole through which normal services/applications can be granted network fastlanes,” IFF argued. CIS agreed that specialised services should be exempted, but said they should be narrowly defined; the service must be, they said, available only upon request; be offered at the same price as General Internet access; unable to be provided over the general Internet at a “best efforts” basis; and does not harm Internet access to the rest of the population.
- Deep Packet Inspection violates privacy: Both CIS and IFF said that DPI should not be allowed. “In particular, DPIs can allow for network snooping down to the level of domain names which can reveal very intimate and sensitive details about an individual internet user,” IFF said. CIS pointed out that “usage of DPI may also suffer from issues of ‘mission-creep’, whereby once deployed, the technology can also be used for very different purposes, including pattern matching of intercepted content and storage of raw data or conclusions drawn from the data.”
- Claiming no Net Neutrality violations disingenuous: IFF said that ISPs’ claims that there have been no Net Neutrality violations in their networks after the DoT made them part of licensing frameworks was “disingenuous”. “On the time period between January-May 2019, we received 307 instances of alleged violations by licensed internet access providers. In particular we noted that specific kinds of services namely: streaming, VPNs, pornographic material, cloud storage services like Cloudflare’s DNS server, et al are on the receiving end of discriminatory treatment,” IFF said.
- Multistakeholder body absolutely needed: “IFF strongly urges your Authority to resist submissions by parties like the Asia Internet Coalition, COAI, BIF and Bharti Airtel which represent that there is no need for a multistakeholder body at all,” IFF warned. “This [position] does not account for the fact that both your Authority and the DoT would benefit from additional institutional capacity to overcome existing limitations in monitoring and enforcement,” they added.
- Probing and ‘secret audits’ needed: “We argue that proactive monitoring of Telecom Service Provider (TSP) practices by the regulatory body is essential in enforcing net neutrality. This must be supplemented with mandatory disclosure of traffic management practices applied by TSPs,” CIS said. The Washington, DC-based Center for Democracy & Technology said that “secret audits” should be conducted without notice to ISPs.