Disclosure: MediaNama has signed Access Now and Internet Society’s open letter to TRAI.
On October 23, Access Now, Internet Society and 22 other organizations and experts including Epicenter.works – for digital rights, Open Net Korea, and Digital Rights Watch Australia sent a joint letter to the Telecom Regulatory Authority of India (TRAI) to uphold net neutrality and not enforce any discriminatory network costs or licensing regimes for online platforms. This comes after TRAI released a consultation paper discussing regulatory mechanisms for Over-The-Top (OTT) communication services (like WhatsApp and Signal) and the selective banning of OTT services in July this year.
Access Now and Internet Society’s letter states that if the regulations suggested in the consultation paper are implemented they could “ fragment the internet, undermine people’s rights, stifle innovation, and fracture the dividend that technology, digitization, and the open internet offer to hundreds of millions of citizens and the national economy.”
As the responses to TRAI’s consultation paper have rolled in, telecom companies have suggested that online platforms should be required to pay a network usage fee for the use of their network infrastructure. Further, they have expressed that communication platforms provide the same services as telcos and should therefore be subject to the same rules— a licensing regime, grievance redressal mechanisms, user identification, etc.
What does the letter say?
Online services are distinct from Telcos and should be treated as such: “Telecom companies control the underlying internet access infrastructure and are the gatekeepers to internet access. No one looking to access internet-based services can do so without paying a subscription fee to a telecom company. Thus, the argument that internet-based services ‘free-ride’ on telecom services is unfounded. Telecom services’ own customers pay telecoms directly to access the internet,” Access Now and Internet Society’s letter says.
No need for a licensing regime: Access Now, Internet Society and others believe that online communication platforms should not be brought under a licensing regime. “The aim of licensing is to encourage responsible use of resources that are scarce in nature, which is why telecom companies which use spectrum are licensed. The internet, on the other hand, is a technology-neutral, general purpose network that does not use or depend on a scarce resource,” the letter reads.
They point out that while TRAI suggests that a licensing regime will “promote a competitive landscape for the benefit of consumers and service innovation,” it has not demonstrated any market failure or lack of competition and innovation to substantiate that claim.
The letter mentions that online platforms provide individuals with the opportunity to send and receive end-to-end encrypted (E2EE) communications— which allows multiple government agencies, health and financial service providers, journalists, and whistleblowers among others to enjoy the fundamental right to privacy. “The structure of rules applicable to traditional telecom services, which are not capable of protecting the fundamental right to privacy in this way, cannot be applied to internet-based communication services without destroying people’s enjoyment of privacy and taking a technological step backward,” the letter said.
The permission-less model of the internet fosters innovation: “A licensing framework will thwart creativity, present high barriers to entry and compliance, and undermine innovation. Start-ups and smaller businesses may not have the resources to obtain or maintain a license,” the letter points out.
It says that people benefit from new and diverse forms of internet-based communications which are possible only because of the openness of the internet. If a licensing regime is enforced, service providers would pass on the cost of the license to their customers. “This means millions of people will no longer be able to afford and use such services or will be offered low-quality services, limiting their ability to exercise their fundamental rights to free speech and expression, assembly, and to carry on their profession or trade,” the letter says.
Network usage fees will harm the foundation of the Internet: The letter mentions that TRAI itself had recommended Net Neutrality principles, and emphasized non-discriminatory access to content, applications, and services on the Internet in 2017. It says that changing the current model of the internet (where every user pays their own internet service provider) “will dramatically alter the fabric of the internet and will cause an irreversible fragmentation or splintering of the internet.”
Selective banning will violate net neutrality principles: Net neutrality principles suggest that all platforms should be treated equally. The letter suggests that this principle is violated by selective banning since it removes, “the assurance that people are able to enjoy equal availability of and access to all services.” It further states that blocking access to entire platforms distorts competition and also has a negative impact on people’s freedom of speech and expression. As such, it says that selective banning, “ must not be permitted in the absence of any material to show its effectiveness, compliance with the principles of necessity and proportionality, and rule of law.”
Note: The story was updated at 5:33 PM on October 31, 2023, to add that Internet Society co-penned the letter with Access Now.
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