The online symposium on the value of Internet Openness at the time of COVID-19 is a joint outcome of the Internet Governance Forum coalition on Net Neutrality and Community Connectivity. This is the second part of the fifth article in the series. The first part is available here. Read all the articles in the symposium here.

By Apar Gupta and Sidharth Deb

Part 1 of this essay considers issues of internet access through the lens of universal coverage and the bandwidth divide. In this post we address a complementary aspect — governance.

Robust internet governance is needed for equity and will support people to negotiate this pandemic as everyday life ports to the internet. Interventions must embed principles of proportionality, transparency and accountability which are centred on progressive constitutional and human rights value systems.

Due to lockdowns and social distancing, Internet usage and resulting traffic has shifted in a manner which diverges from existing network design and concomitant network capacities. This shift in internet usage in terms of total and peak traffic loads caused a surge in the use of  high bandwidth low-latency solutions like real time video conferencing apps. This has also been an uptick in the general usage of services like video content services, social networks, live streaming platforms, video gaming, etc.

Managing Shifts in Network Traffic

The shift in pressures on underlying internet and mobile infrastructures has seen Indian telecom operators advocate for relaxations to net neutrality obligations. Telecom industry bodies have written to the Telecom Regulatory Authority of India (“TRAI”) requesting exemptions from charging data charges to access certain websites described as critical services. These include sites containing information about COVID-19, government services, e-commerce and certain digital payments applications. Such requests deviate from Indian regulations which prohibit internet providers from zero rating particular data applications/services.

To be sure, TRAI’s Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016, do provide for limited exemptions. Under Regulation 4 service providers are allowed to reduce tariffs for accessing emergency services, during times of individual or public emergency. However, the Regulation mandates that any such exemption must be sanctioned by TRAI (where TRAI’s decision is final binding) within 7 days from date of implementation of reduction in tariff.

While the above interactions were not strictly within the confines of the prescribed framework, we must read the above instances along with the fact that these industry bodies have written to online video content providers, to reduce their bitrates. By referencing measures taken by online content providers in jurisdictions like Europe, we have noticed that most participants in the Indian online video market have complied and reduced their offerings to SD bitrates.

To be clear, many of these service providers charge a premium to consumers to access high definition content feeds. These measures have been taken with little evidence available to the public of the actual stress being placed on India’s underlying networks. India’s internet infrastructure has traditionally been characterised as underutilised. This fact may be contrasted with a report which found that mobile internet use only increased by 10 percent in the month of March 2020. Pertinently, in Tier 1 metros the increase was even more modest at 3-5 percent.

Without appropriate review and response mechanisms, there is a threat for discretionary responses which threaten net neutrality. As such net neutrality in India remains imperfect owing to the fact that we are yet to finalise a definition of “reasonable traffic management practices”, and actual means of monitoring and enforcement. This lacuna has meant internet providers in India continue to operate with relative impunity when it comes to net neutrality. Therefore, it becomes even more imperative that TRAI expedites its latest consultation on defining traffic management practices, monitoring, enforcement and a multistakeholder body for net neutrality.

In the meantime authorities in countries like India must undertake an evidence based review of the impact COVID-19 may have on existing network capacities. Transparent and broad-based dialogue is key. Indian authorities should follow in the steps of international counterparts like BEREC which convenes stakeholder meetings twice a week to dynamically track the impact COVID-19 and lockdown has on underlying network infrastructure.

Based on this authorities have the ability to audit service providers and ensure they do not deploy undue network management practices. Laudably, to ensure transparency BEREC publishes weekly reports of these discussions. Along these lines we suggest India should have twice a week meetings between DoT, TRAI, TSPs/ISPs, internet exchange points, CDN providers, cloud service providers, content providers, small businesses, video conferencing app developers, consumer groups and so on, to ascertain the actual impact COVID-19 is having on internet capacity and quality of service. Any remedial action must be consistent with the principle of network neutrality. Like BEREC, Indian authorities should make the findings from these discussions public via weekly reports. Subsequent actions must also keep in mind India’s domestic telecom capacities which have traditionally been underutilised.

Internet Access as a Civil Right

The final key component in addressing the digital divide is addressing aspects relating to internet access as a human right. Notably,  the internet has morphed from a luxury into a necessity. Therefore, governance of the medium must also start reflecting this heightened importance. The Hon’ble Supreme Court of India in KS Puttaswamy v Union of India [(2017) 10 SCC 1] remarked that Article 21 of India’s Constitution, which protects people’s right to life and personal liberty can be:

“ … interpreted to include a spectrum of entitlements such as … the right to means of communication …” [emphasis ours]

Subsequent internet jurisprudence has evolved to accord heightened recognition to the internet. In September 2019, the Kerala High Court recognised access to the internet as a fundamental right. The High Court held that the right to access the internet falls under India’s overarching right to life and liberty and in particular at the intersection of the right to education and the right to privacy.

Such recognition of constitutional rights being attached to internet access is not novel. During India’s net neutrality debates access to the internet has been connected with people’s right to freedom of speech and expression. In January 2020, India’s Supreme Court judgement in the matter of Anuradha Bhasin v Union of India acknowledged that people’s fundamental rights apply online. These include rights like:

  • the right to freedom of speech and expression; and
  • the freedom to practice any profession or to carry on any occupation, trade or business.

The above case pertained to government mandated internet shutdowns and suspensions in Jammu and Kashmir. However, India’s Supreme Court refrained from going the extra mile and aligning itself with international human rights benchmarks. India is a signatory to the International Covenant on Civil and Political Rights (ICCPR). In this regard, a UN Special Rapporteur report on the promotion and protection of the right to freedom of opinion and expression, concludes that any decision by a government to cut off internet access for users, regardless of justification, is violative of the internationally protected freedom to hold opinions, speech and expression.

Instead, the Supreme Court of India mandated the Indian Government to reform India’s current telecommunications and internet suspension framework. It also made other directives vis-à-vis transparency, accountability and also explicitly held that indefinite shutdowns are unconstitutional. Unfortunately, there have been no steps taken by the Government of India to review the country’s internet suspension framework in a manner which reflects or operationalises the treatment of the internet as a core human right.

Instead, governments in areas like Kashmir have commenced sophisticated ways to undermine internet access. Since January 2020, the Kashmir Government has issued directions (under India’s internet suspension framework) to allow very limited public access to the internet. In particular the public were only allowed to access a few sites, while most remained blocked — via a process known as whitelisting. After much public pressure this practice was eventually lifted by the Kashmir Government.

However, we have also seen efforts by the region’s government to deny people access to meaningful connectivity. Heavy handed government control means that only fixed wireline services have had access in the region to full speed internet connectivity. However, the access to such services requires users to share static MAC addresses with the Government, which allows them to snoop on people’s activities online.

Notably, the Kashmir Government has ensured that mobile subscribers (who comprise most internet users in the region) are only able to access the internet at 2G internet speeds. Such speeds render internet access inconsequential. Even here there is a greater degree of control for people with prepaid mobile subscriptions. Such individuals must go through fresh processes of registration with authorities to even have access to such such slow internet connectivity. Such control makes it difficult for most people to even access 2G internet services.

Such tight control over internet connectivity and the lack of meaningful bandwidth has had a crippling impact on the region — from a humanitarian and from an economic perspective. These challenges are of course exaggerated during the coronavirus. Specifically, it thwarts doctors from downloading manuals/treatment related information from the internet since most files are large — and it would take hours for a 2G connected device to download.

Most recent, the Supreme Court of India heard a matter on internet slowdowns and restoring 4G/high speed internet connectivity in Kashmir. During substantive arguments, the petitioners highlighted the impact of the internet slowdown on access to healthcare and education in the region. These contentions were supported by personal narratives from doctors, teachers, students, business persons and lawyers and a technical comparison of web performance at 2G and  4G speed.

The technical report revealed that tasks on observed 2G speed can take upto 50 times longer. Moreover, 2G network conditions were well below the minimum requirements of video streaming/video communication platforms like YouTube, Zoom and Skype. According to an accompanying simulated test some interactive interfaces like the World Health Organization’s Situation Tracker did not function at observed 2G speeds at all. The Supreme Court ultimately passed an order in which it directed the Government to immediately constitute a high-powered Special Committee to look into the contentions of the Petitioners for 4G restoration in Jammu and Kashmir.

Given that the Supreme Court shifted the ultimate decision making power back to the executive, we strongly believe the political must converge with the technical. Given new pressures on network capacities, government officials must appreciate that any politically guided decision to shutdown the internet causes undue stress on the network underlying infrastructure. As a policy brief by Internet Society puts it:

“When a complete Internet shutdown occurs in a given country, the technical impact can extend beyond the country’s borders to the rest of the global Internet … shutdowns hold the potential to generate systemic risks.”

Specifically, shutdowns can have an adverse impact on the integrity of the internet’s core infrastructure. This includes disruption of core operations like domain name services or routing infrastructure.

Therefore, there is a need for India’s Government to understand the need for continuous access to high speed internet during all times but especially during a pandemic like the coronavirus. As argued, these imperatives stem from the prism of civil rights, utilities, and technical considerations. Any misuse of the internet does not mean that access to the medium is denied for millions of people in a time where any down time can have grave economic, health and sustenance related consequences.

Disclosure: The Internet Freedom Foundation provided legal support to petitioners, that is, the Foundation for Media Professionals in the matter of Foundation for Media Professionals v Union of India and Others.

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Apar Gupta is the Executive Director of the Internet Freedom Foundation and is a 2020 Ashoka Fellow for Social Entrepreneurship.

Sidharth Deb is the Policy and Parliamentary Counsel at the Internet Freedom Foundation.