TRAI releases Regulations enforcing Net Neutrality, prohibits Differential Pricing

Written by Siddharth Manohar

The Telecom Regulatory Authority of India (TRAI) has come out with a set of regulations explicitly prohibiting differential pricing for data services in India.

3. Prohibition of discriminatory tariffs.— (1) No service provider shall offer or charge discriminatory tariffs for data services on the basis of content.

(2) No service provider shall enter into any arrangement, agreement or contract, by whatever name called, with any person, natural or legal, that has the effect of discriminatory tariffs for data services being offered or charged to the consumer on the basis of content

TRAI recently concluded a public consultation process regarding differential pricing in data services (resources). The consultation paper covered all differently-priced or zero-rated services offered through data. The process has witnessed tremendous public participation, with a spirited campaign by Internet activists (Savetheinternet.in) and a counter-campaign by Facebook where it garnered support through users by using the narrative of connecting those who have no access (https://www.facebook.com/savefreebasics).

CCG submitted a formal response as part of this process, which you can read here, and filed an additional counter-comment signed by ten different civil society and research organizations.

The consultation process also involved a public discussion on the questions raised, where the usual suspects were all present – telecom companies arguing for differential pricing, and internet activists against. Also present were startup- and user- representatives.

Facebook’s telecom partner for carrying the Free Basics platform in India —Reliance Communications — was then instructed by TRAI to put a hold on rolling out Free Basics until they came up with a clear position on differential pricing and net neutrality. The regulator later confirmed that they received a compliance report to this effect as well. Facebook had been aggressively pursuing its campaign to collect support in favour of its platform for the entire duration of the public consultation.

TRAI has clarified that these regulations ‘may’ be reviewed after a two year period, or at an earlier time as decided by the Authority. An exception to the prohibition has also been included, to account for emergency services and services offered during ‘times of grave public emergency’. An additional exception is that of closed networks which charge a special tariff for their usage.

[We will shortly update the piece with more analysis of the regulations] 

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A Constitutional Right against Free Basics? The Link between Article 19 and Zero Rating

Written by Siddharth Manohar

The past month has witnessed a rise in tide of public debate surrounding net neutrality once more, accompanying the release of another Consultation Paper by TRAI, and another AIB video urging public participation in the ongoing consultation process. To add to this mix there has also been an effort from Facebook to build consensus amongst its userbase regarding the effect of ‘Free Basics’ on net neutrality. The crux of one set of arguments put forth in these debates consists of the harm that a differentially priced platform can cause to competition in the market for Internet applications, along with the related concern of monopolization of a section of the country’s userbase. The other side places emphasis on the need to increase the accessibility of the Internet, and both have disagreements as to the interpretation of the term ‘net neutrality’.

An important issue that gets missed out in the rhetoric is the Fundamental right of Internet users to access a diverse set of media sources on any given platform whose nature is that of a public utility. Media diversity implies that the information stream reaching the public through any public medium must be prevented from being unduly influenced by one or a few entities with a controlling effect on the market for these media content providers. It also rules against any role for the carriers of content (known usually as intermediaries or service providers) in choosing whose or what kind of content is allowed on the medium. The usage and allocation of the medium as a public resource is subject to certain Constitutional principles as well, and these are also ignored while discussing how to regulate (or not) Internet-related services in India.

The Right to be Informed

Article 19 of the Constitution guarantees the right to freedom of expression, but this right also includes the right of citizens to a plural media. As discussed by the Supreme Court in Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal, the debate and opinions sought to be protected by Article 19 need to be informed by a plurality of views and an ‘aware citizenry’. What does this mean for regulation of access to the Internet? It translates into ensuring the possibility of a wide array of options in terms of media consumer choices being made available to the public. Any communication platform cannot remain restricted in its control by one or a few parties. This restricts the nature of the content available through that media, leading to narrowing of the ideas views available to citizens on any public platform.

It is far from difficult to balance this concern with the free market. The principle encourages a competitive atmosphere between content providers, and seeks to avoid a situation where there is a disproportionately dominant player in the market exerting undue influence over the functioning of that market. The presence of a single or few dominant entity(ies) enjoying a magnified impact on the market makes it difficult for newer entrants to make a dent in the market-share of the dominant player, thus reducing the possibility of any competition being provided by these smaller players.

This Constitutional requirement comes in conflict with the concept of zero-rated plans at its core: can we really have a telecom company deciding the exact specific pieces of content that we receive in preference to all other content? Are we willing to hand them this power of shaping consumer choice, public access and opinion simply by choosing the right business partners? If we can conclusively answer these questions in the affirmative, zero-rating plans would have no quarrel with Article 19. Indeed, such an affirmation would even successfully dispense with one of the core tenants of the idea of net neutrality – that all data be treated in the same manner irrespective of its content.

Spectrum as a Public Resource

The Cricket Association of Bengal judgment also discusses the regulation of spectrum as a public resource. This is arguably an even more fundamental question, addressing the question of what qualifies as legitimate usage and allocation of spectrum. The Court characterized airwaves as a scarce public resource, which ought to be used in the best interests of the public, and in a manner that prevents any infractions on their rights. Justice Reddy’s opinion in the judgment even acknowledges the requirement of media plurality as part of the required policy approach for regulating spectrum.

Another SC judgment arguing in a similar vein, Association of Unified Tele Services Providers & Ors. v. Union of India & Ors., ruled that the State is bound to use spectrum resources solely for the enjoyment of the general public. Applying the public trust doctrine, it explained that the resources are prohibited from being used or transferred for any kind of private or commercial interest.

What the available jurisprudence effectively lays down can be encapsulated in the following: Spectrum is a public resource that can only be used and/or allocated by the state for general public benefit, and cannot be used in any manner for private or commercial interests. This public interest contains various concerns, one of them being the right to a diverse set of media content sources, so as to avoid interested parties having any kind of power or control over the content available to consumers. What this means for the State is that spectrum must be used in order to maximise the variety of media available to end-users and prohibit control over the medium of transmission being controlled by a single or few player(s).

This creates a tricky situation for TRAI, who have asked for public comments on the desirability of differential pricing in data services. There is a glaring lack of clarity on the exact mandate provided to the state regarding how to use spectrum resources to achieve TRAI’s officially cited objective of providing ‘free’ Internet access to consumers. Without discussion focusing on the exact nature of what we want to achieve, we will continue to be forced take reactionary positions regarding most issues and developments. Forming a concrete policy to connect India’s billion can only get a whole lot easier once we are able to agree upon a common goal and a set of principles regarding how to get there.

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Image Credit: Everybody Loves Eric Raymond: http://geekz.co.uk/lovesraymond/

Wire Trap: Net neutrality and India’s long history of controlling Technology

The post originally appeared on Caravan on 1st June 2015.

Students access the internet at an event in Bengaluru, in 2003. Contrary to popular belief, the internet is one of the world’s most heavily policed public resources.

Students access the internet at an event in Bengaluru, in 2003. Contrary to popular belief, the internet is one of the world’s most heavily policed public resources.

IN 1989, the International Science Policy Foundation hosted a three-day symposium on “Scientific Temper and National Development” in Delhi. Prime Minister Rajiv Gandhi—whose hand-picked team of technocrats were promising messianic solutions to India’s fledgling IT sector—delivered the opening remarks. All technology, Gandhi declared, was “value neutral.” Those who opposed technology transfer from the West simply did not understand that it could be “injected with proper values” at home.

The prime minister’s words generated much controversy, with one commentator in the Economic and Political Weekly accusing his government of social engineering through technology. In his rush to embrace digital development, Gandhi had unwittingly courted the idea that the digital medium was somehow especially pliable to what the Indian government perceived as core national values.

For the better part of two decades, this idea has remained largely unchallenged, and in their relentless march on the digital frontier, government agencies have tried to capture the internet, too. A consultation paper on “Over-The-Top” services—or OTTs, an umbrella term for all internet applications—released in March by India’s telecom watchdog is only the latest attempt by the Indian state to satisfy its regulatory appetite. In it, the Telecom Regulatory Authority of India, or TRAI, suggests that OTTs have been “overwhelming” telecom service providers, presenting “cybersecurity threats,” and could even “cause disturbance and affect the social fabric.” TRAI predicts that YouTube and other video content hosts will clog India’s poor network infrastructure within five years, even as applications such as WhatsApp may be used to foment mischief, not unlike how messages were circulated across Bengaluru in 2012 “targeting students from the North East.”

But by recommending that internet applications share revenue and information with telecom operators, TRAI would be putting paid to net neutrality—the principle that all digital content should pass unhindered from one end of a network to another. Given a free hand to discriminate between the data that passes through their servers, telecom giants could determine which applications are allowed to work faster, and which ones see their data delivered at all. They could enter into “zero-rating” agreements with successful apps, to subsidise limitless access of their data to consumers. To sift data from applications that facilitate voice-calling over the internet, telecom companies may use Deep Packet Inspection, a filtering technology that allows ISPs to gauge not only the volume of data being transferred, but also the content of online conversations. In other words, the telecommunications industry could become the arbiter of Indian citizens’ rights to digital access, information and privacy; and of emerging internet ventures’ ability to innovate and compete with established players.

There has been a tide of popular support for net neutrality in the wake of the consultation paper. TRAI, nevertheless, has stood its ground, declaring that “shrill voices” won’t “win the debate.” On the other hand, the department of telecommunications, led by the minister Ravi Shankar Prasad, has defiantly announced its support for “non-discriminatory” internet access.

Whether the minister’s posturing or TRAI’s persistence carries the day, ordinary internet users have been edged out of consideration in these policy debates. And despite the enormity of the questions of public interest involved—some of which go well beyond their mandates—TRAI and the telecom department seem to have relegated net neutrality itself to a footnote within the larger story of regulation.

The internet, despite its enduring reputation as a virtual badlands, is among the most tightly controlled public resources in the world. Few functional or technical aspects of cyberspace today are outside the purview of regulation, be they the rights to domain names, access to online content, or even the number of internet protocol, or IP, addresses that can be allocated to a country. The political economy spawned by the internet requires a sophisticated regulatory framework: one that can reconcile the rights of end users, the pressures of the market, and the responsibility of governments to maintain national security.

Most countries are yet to strike a balance between these forces. In the United States, for instance, the internet was incubated on university campuses across the West Coast in the 1970s, without government strictures or bureaucratic intervention. Today, security concerns dominate debates on the country’s cyber norms, reflecting how regulation has been influenced by the fallout of the terrorist attacks of September 2001. In Brazil, on the other hand, where decades of dictatorship before 1985 had strengthened the hands of security forces, a surprisingly robust civil rights movement recently pulled off the seemingly impossible: the enactment of a “Marco Civil,” a Brazilian constitution for the internet.

In independent India, the growth of technology—specifically of the computing industry, IT services, telecommunications and, finally, the internet—has been symbiotic with the country’s politics. A succession of leaders, beginning with Jawaharlal Nehru, situated technology within a deeply political agenda that fed the state’s regulatory impulse. The desire to inject it with political values, which Rajiv Gandhi let slip at the ISPF symposium, required a new bureaucratic apparatus. The telecom department is at the core of that bureaucracy; TRAI, an independent regulator on paper but tethered to the state in practice, is simply an extension of it. To understand these two agencies’ oppositional overtures on net neutrality requires contextualising them in the Indian state’s historic role as regulator for the digital medium.

Bureaucratic control over technology took root through Nehru’s Second Five Year Plan, which was in effect between 1956 and 1961 and aimed to promote industrialisation. Pursuant to the Plan, parliament passed the Scientific Policy Resolution of 1958, which sought “large scale development” of technology to “reduce the drain on capital” through imports. Indigenous computing systems, despite being carefully nurtured by Nehru’s aides Homi Bhabha and PC Mahalanobis, failed to take off, resulting in the capture of the Indian market by the US giant International Business Machines Corporation. IBM’s domination set the cat among the pigeons, prompting the parliament to declare in 1966 that “India should participate in the ownership and control of foreign computer subsidiaries in the country.”

If the Nehru regime invoked the mantra of “self-reliance” in computing, Indira Gandhi sought to promote home-grown technology through nationalisation. For nearly a decade, IBM resisted government attempts to wrest ownership of its Indian subsidiary, until the passage of the Foreign Exchange Regulation Act made it difficult for the company to manage one at all. Reluctant to cede control to an Indian counterpart, IBM left the country in 1978, setting the use of computers for both civilian and research purposes back by years. Indian businesses, too, were hurt in this regard by labour laws requiring “prior agreement” from trade unions before introducing computers on their premises.

Regulations were eased during Rajiv Gandhi’s term. Software and computer imports were liberalised in 1984. The Education and Research Network, or ERNET, a precursor to the internet in India, was set up with assistance from the United Nations Development Program. Telephone services were “corporatised” with the setting up of MTNL and VSNL as public-sector units. The Centre for Advanced Computing was created in 1988. For a while, it seemed civilian and commercial users would have a say in the growth of digital networks.

The institutional and policy changes in India’s IT landscape during this period were, nevertheless, engineered to realise Gandhi’s goal of a technological “revolution.” The government added a new layer of bureaucracy to the sector with the creation of the department of telecommunications in 1989. The National Informatics Centre, or NIC, formerly under the department of electronics, was placed under the planning commission for greater coordination with Gandhi’s political goals.

Despite the rhetoric of modernising governance, few ministries were actually plugged into the NIC’s mainframe database to make use of its volumes of data. The running of ERNET, technically a research network linking India’s premier scientific institutions, was supervised by bureaucrats close to Gandhi. The “License Raj” of previous regimes continued, leaving entrepreneurs at the mercy of regulators. The National Association of Software and Service Companies successfully navigated this space by creating institutional links between the bureaucracy and the industry, a practice that continues to this day. But lost in the melee of reform was any serious evaluation of the rights of a growing community of consumers—both software and internet users.

TRAI, too, was born out of political exigency. The balance of payment crisis in the 1990s resulted in a clamour, both at home and abroad, for private investment in telecommunications. Ahead of a crucial prime ministerial visit to the United States, the Narasimha Rao government hastily drafted the National Telecom Policy of 1994, which acknowledged the need for privatisation. Although several government advisory committees had mooted the idea of a telecom regulator, the NTP stopped short of creating one in the face of staunch resistance from the department of telecommunications. But the following years saw the department embroiled in corruption—the telecom minister Sukh Ram Singh eventually resigned—leaving the government with no option but to set up TRAI in 1997.

Of the scramble to draft the TRAI statute, one consultant involved said that “to suggest, even indirectly, that the government had, at that time, a clear idea of what it was that it wanted the TRAI to achieve, is stretching credibility.”

The telecom department’s attempts to protect its turf are singularly responsible for TRAI’s peculiar present existence as an intermediary between telecom operators and the government. TRAI’s formative years were marked by legal and political battles with the telecom department, in which it invariably took up cudgels on behalf of private operators. An alliance developed between the regulator and industry associations as they found common cause in dismantling the state monopoly on telecommunications. But, at the end of a protracted dispute in court, TRAI was left with nothing but recommendatory powers, while the telecom department—despite its conflicting positions as both a licensor and provider of services—remained the supreme policy-making authority.

TRAI’s emergence as a reactionary to the telecom department’s policies defined its institutional role, effectively making it an echo chamber for the concerns of private service providers. Subsequent policy instruments, such as the National Telecom Policy of 1999, the Internet Policy of 1998, and the Information Technology Act of 2000, all focused on the relationship between telecom companies and internet service providers and the state, and broadened TRAI’s capacities. A small group of industry representatives emerged as the most vocal participants in the body’s consultative processes, which became inaccessible to most consumer-rights activists and ordinary citizens. It should be no surprise that TRAI has now thumbed its nose at net neutrality in its consultation paper on OTTs. The regulator is merely leaning back on a decades-old institutional culture of voicing the concerns of its most powerful constituency: private industry.

That the telecom department is appearing to bat for net neutrality should offer little relief to Indian internet users. The truth is that the raison d’être of internet regulation continues to exist, and the telecom department’s ongoing exchange with TRAI is just an extension of a long-running turf battle. The government remains keen to harness the internet to serve its political goals, be they censorship or constituency mobilisation.

The real scandal lies in how all of this is ceding control over a matter of genuine public interest to the regulatory machine. A system hardened by years of politicking has left little room for democratic interventions in digital policies. The public has been left to fight poorly crafted laws—of which Section 66A of the IT Act was until recently the poster child—that have, for years, been taking a toll on fundamental constitutional guarantees. Indian internet users have been gradually disempowered by a regulatory leviathan. To rein it in may require a grassroots movement that resets the digital agenda.

(Arun Mohan Sukumar is a Senior Fellow at the Centre)

IT Ministry’s Response to Questions in Rajya Sabha (includes Blocking of Content, Net Neutrality, Amendments to IT Act, Website Accessibility)

The Ministry of Communication and Information Technology recently (8th May) provided answers to a number of questions (here and here), which were raised by the parliamentarians in the Rajya Sabha. We have extracted a set of 10 questions below, that deal with a number of issues including IAMAI’s role in blocking of content, Net Neutrality, proposals for amendment to the IT Act and accessibility of government website among others.

Question 1: (Monitoring and blocking of offensive online content) 

(a) Whether it is a fact that the Cyber Regulation Advisory Committee, in its meeting held on 5th September, 2014, has delegated the task of preparing a list of pornographic sites for blocking, to the Internet and Mobile Association of India (IAMAI), an industry organization.

(b) If so, the reasons for entrusting a private entity with a function that ought to be discharged by Government agencies in public interest; and

(c) The measures being taken by Government to enhance and strengthen the capacity and technical expertise of Government agencies for monitoring and blocking of offensive online content?

Answer:

(a) and (b) In Writ Petition in the matter of Kamlesh Vaswani vs. Union of India, the Hon’ble Supreme Court in its order dated 29.8.2014 directed that it would be appropriate if the Government places the copy of the writ petition and interlocutory applications before the Cyber Regulation Advisory Committee (CRAC), which has members from all sections of the Society including Government, Industry, Civil Society and Academy, for its consideration. The constitution of the Committee (CRAC) was revised and notified in Oct. 2010. The last CRAC meeting was held on 5th September 2014 to discuss issues relating to availability of pornography material on the Internet and filtering of the same by the service providers in the country. CRAC requested Internet and Mobile Association of India (IAMAI), an association of members from content providers to lead the effort as part of Social responsibility, to collect and maintain the repository of blacklisted pornography sites from various sources including list of child pornography sites maintained by other countries. Further, IAMAI was requested to set up help lines and web portal for reporting of such sites through Crowd sourcing mechanism. IAMAI would regularly provide the list of such sites to Government for further appropriate action. Similar approach is adopted by other countries like Australia, United Kingdom and Unites States of America, where the Governments are working with Non – Government Organizations (NGOs) to filter pornography sites.

(c) The filtering of web sites with obscene / objectionable content poses significant technical challenge. These websites keep on changing the names, domain addresses and hosting platforms from time to time making it difficult to filter or block such websites using technical tools available in the market. Further “https” websites with encrypted content are used to transmit the pornographic content which makes filtering difficult as the data is encrypted. Therefore, the tools provide filtering to a limited extent only. The tools, in the process may also filter genuine content and degrade the performance of systems.

To address the issues effectively, Government is in regular touch with Internet Service Providers to upgrade their infrastructure and technology to effectively address the shortcomings with regard to identifying and blocking encrypted websites /URLs. Further, Social Networking sites are monitored by the security agencies in order to check / remove objectionable contents from the web sites in consultation with Indian Computer Emergency Team (CERT-In) in accordance with the provisions of Information Technology Act, 2000. Government is in regular touch with Social Networking sites, having their offices in India, to disable objectionable contents at the source from their websites. Government has also initiated Research and Development programmes to deal with technical issues relating to encrypted communications from the point of monitoring and blocking.

Question 2: (Secure flow of public and private communications)

(a) The steps Government has taken or proposes to take to protect privacy and security of our citizens and elected leaders in view of recent global incidents of tapping of communications by US and UK agencies;

(b) Whether Government will control foreign agencies handling internal communications of our citizens and Government; and

(c) Whether Government will take initiative in this respect to bring together various Governments to ensure secure flow of public and private communications and protect exchange of communications of national interest among Government officials?

Answer:

(a) and (b) Sir, taking note of the disclosure by foreign media reports in June, 2013 about extensive electronic surveillance programmes deployed by the U.S. agencies to collect internet and telephony data, Government has expressed concerns over reported U.S. monitoring of internet traffic of India. Concerns with regard to violation of any of Indian laws relating to privacy of information of Indian citizens as well as intrusive data capture deployed against Indian citizens or Government infrastructure have been conveyed to the U.S. Government. In addition, the issue of U.S. cyber surveillance activities was discussed during the India-US Strategic Dialogue meeting held in New Delhi on 24 June 2013.

Government keeps on taking appropriate protective measures by way of an integrated approach with a series of legal, technical and administrative steps to ensure that necessary systems are in place to address the growing threat of cyber attacks. In this direction, Government has approved a framework for cyber security, including protection of critical sectors in country that envisages a multi-layered approach for ensuring defence-in-depth with clear demarcation of responsibilities among various agencies and departments. Government is also engaged with world community towards promoting the evolution of better international Internet governance-norms, through ongoing discussions at international fora.

(c) Government is promoting Indian players in the IT field to develop and offer Internet Services by having the servers located in India, in order to protect the interests and secrecy of communication of Indian citizens. Already Rediff and Indiatimes have set up Servers and accessories in the country to provide email and other services to Indian citizens.

Further, Government has notified email policy of Government of India on 19th Feb. 2015 to protect exchange of communications of National interest among Government officials. The policy mandates that only Government of India email service shall be used for official correspondence, the objective of the policy includes sensitizing the Government officials regarding protection of critical Government data and mandating the use of Government mail service for official communication. Government has also planned to install Secure & Dedicated Communication Network (SDCN) for Intra-Government Classified Communication.

Question 3: (Net Neutrality on the use of Internet)

(a) Whether TRAI has come out with a discussion paper on the use of internet particularly the Net Neutrality in the country

(b) If so, the details thereof

(c) Whether it is a fact that many people in the country are in favour of Net Neutrality and have given their comments to TRAI in this regard; and

(d) The stand of Government on Net Neutrality?

Answer:

(a) and (b) Telecom Regulatory Authority of India (TRAI) has released a consultation paper on “Regulatory Framework for Over-the-top services” on 27th March, 2015 for inviting comments from various stakeholders. This consultation paper also covers the issues related to Net Neutrality. The last date for receiving comments and counter comments is 24th April, 2015 and 8th May, 2015 respectively. Further, this consultation paper is available on TRAI website http://www.trai.gov.in.

(c) TRAI has received a large number of comments (more than 10 Lakh) in response to the consultation paper on “Regulatory Framework for Over-the-top services”. This consultation paper also covers the issues related to Net Neutrality. These comments are uploaded in TRAI website http://www.trai.gov.in.

(d) Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to Internet for all citizens of the country.
At present the issues pertaining to net neutrality are in consultation stage. Department of Telecommunications has constituted a committee in January, 2015 to examine various aspects of net neutrality and recommend overall policy and technical response to net neutrality. The committee has already held stakeholder consultation meetings with Over the Top (OTT) players, Telecom Service Providers/Internet Service Providers, Civil Society Member & Consumer groups, Multi stakeholder Advisory Group (MAG) of Department of Electronics & Information Technology (DeitY) and various Associations/Industry bodies.
Based on the report of committee and TRAI recommendations Government will take a considered decision.

Question 4: (Resolving Net Neutrality Issue)

(a) How does Government proposes to address and resolve the Net Neutrality issue; and

(b) How does Government plans to ensure that telecom operators won”t pass on to the customers the burden of high spectrum price paid by them to the Government?

Answer:

(a) Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to internet for all citizens of the country.

At present the issues pertaining to net neutrality are in consultation stage. Telecom Regulatory Authority of India (TRAI) has released a consultation paper on “Regulatory framework for Over-the-top services” on 27th March 2015. This consultation paper covers the views of the service providers and OTT providers and related issues including net neutrality. The last date for receiving comments and counter comments is 24th April, 2015 and 8th May, 2015 respectively.

Department of Telecommunications has constituted a committee in January,2015 to examine various aspects of net neutrality and recommend overall policy and technical response to net neutrality. The committee has already held stakeholder consultation meetings with Over the Top (OTT) players, Telecom Service Providers/Internet Service Providers, Civil Society Member & Consumer groups, Multi stakeholder Advisory Group (MAG) of Department of Electronics & Information Technology (DeitY) and various Associations/Industry bodies.

Based on the report of committee and TRAI recommendations Government will take a considered decision.

(b) Tariff for telecom services falls under purview of Telecom Regulatory Authority of India (TRAI). As per the existing tariff framework, tariff for telecommunication access service is under forbearance except for National Roaming and Rural Fixed Line Services. The service providers have the flexibility to decide various tariff components for different service areas of their operation. Tariffs are offered by service providers taking into account several factors including input costs, level of competition and other commercial considerations.

Question 5: (Position on Net Neutrality)

Whether in view of the fact that a committee has been formed within the Ministry to evolve its position on Net Neutrality, Government would ensure that the position on Net Neutrality is discussed in the Parliament and with the public, the details thereof?

Answer:

Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to Internet for all citizens of the country.
At present, the issues pertaining to net neutrality are in consultation stage. Telecom Regulatory Authority of India (TRAI) has released a consultation paper on “Regulatory Framework for Over-the-top services” on 27th March, 2015 for inviting comments from various stakeholders. This consultation paper also covers the issues related to Net Neutrality. The last date for receiving comments and counter comments is 24th April, 2015 and 8th May, 2015 respectively. Further, this consultation paper is available on TRAI website http://www.trai.gov.in.

Department of Telecommunications has constituted a committee in January, 2015 to examine various aspects of net neutrality and recommend overall policy and technical response to net neutrality. The committee has already held stakeholder consultation meetings with Over the Top (OTT) players, Telecom Service Providers/Internet Service Providers, Civil Society Member & Consumer groups, Multi stakeholder Advisory Group (MAG) of Department of Electronics & Information Technology (DeitY) and various Associations/Industry bodies. The committee has been asked to submit its report by May, 2015 end.

Further, Statement on Calling Attention Notice by Sh. Derek O’ Brien Hon’ble MP, Rajya Sabha on ‘Issue of safeguarding Net Neutrality in the country’ was made by Hon’ble Minister of Communications & IT on 05.05.2015 and he replied on various queries, issues and aspects raised by Hon’ble Members of Rajya Sabha. (Copy of statement is annexed).

Based on the report of committee and TRAI recommendations Government will take a considered decision.

Question 6: (Amendment to IT Act, 2000)

(a) Whether Government is planning to amend the Information and Technology (IT) Act 2000 in the aftermath of the recent Supreme Court judgement that struck down Section 66A as unconstitutional, with a view to de-criminalize posting of offensive content on the Internet;

(b) If so, whether Government is planning to include procedural safeguards in such a provision to ensure that such provision is not misused by fundamentalist elements in Society to harass law-abiding citizens; and

(c) if so, the details thereof and if not, the reasons therefor?

Answer:

(a), (b) and (c) Presently, there is no proposal with the Government to amend the Information Technology (IT) Act 2000. However, Ministry of Home Affairs has constituted a Committee to examine the implications of the Hon’ble Supreme Court’s judgment quashing Section 66A of the Information Technology Act 2000 and to suggest appropriate legal remedy to fill gaps in the legal regime, if any, in the wake of the aforesaid judgment.

Also, an Expert Committee under the Chairmanship of Shri T.K. Vishwanathan, former Secretary, Law Commission & Secretary General has been set up by Ministry of Home Affairs to study and examine the existing domestic cyber laws and International Cyber legislations and recommend a road map with measures and amendments to the present laws for consideration of the Government.
Further, in order to comprehensively address the issues of Cyber Crimes, Ministry of Home Affairs has set up an Expert Group consisting of Academicians and Professionals of repute to prepare a roadmap for effectively tackling the Cyber Crimes in the country and give suitable recommendations on all facets of cyber crime. The five-member Expert Study Group comprises of Dr. Rajat Moona, Director General Centre for Development of Advanced Computing (CDAC), Professor Balakrishnan, Indian Institute of Science, Bengaluru, Dr. Gulshan Rai, then Director General Indian Computer Emergency Response Team (Cert-In), Professor Manindra Aggarwal, Indian Institute of Technology (IIT), Kanpur and Professor D. Dass, International Institute of Information Technology (IIIT), Bengaluru. Shri Kumar Alok, Joint Secretary, Ministry of Home Affairs is the Convenor of the Expert Group. The Terms of Reference of the Expert Group are:

i) To prepare a Road Map for effectively tackling the Cyber Crime in the country and give suitable recommendations on all its facets.

ii) Recommend possible partnerships with Public and Private Sector, NGOs, International Bodies and International NGOs.

iii) Any other special measures / steps the Expert Group may like to recommend with regard to tackling Cyber Crimes.

Question 7: (Broadband penetration in the county)

(a) Whether it is a fact that our country is ranked below Bhutan and Sri Lanka in terms of broadband penetration and ranks 125th in the world for fixed broadband penetration;

(b) Whether Telecom Regulatory Authority of India (TRAI) has suggested that the multi-layered structure involved in the decision making for the sector needs to be overhauled;

(c) If so, the details thereof;

(d) Whether it is also a fact that TRAI has also suggested that the licence fee on the revenue earned from fixed line should be exempted for five years; and

(e) If so, the view of Government in this regard?

Answer:

(a) As per ‘The State of Broadband 2014: Broadband for All’ report, published by the Broadband Commission of the International Telecommunication Union (ITU) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) which was published in September 2014, the ranking of Bhutan, Sri Lanka and India with respect to Fixed Broadband penetration for 2013 are as under:

Fixed Broadband Penetration

                     (per 100 inhabitants)     Rank

Bhutan                       2.7                     108

Sri Lanka                    2.0                     115

India                            1.2                    125

(b) to (e) Telecom Regularity Authority of India (TRAI) in its recommendations “Delivering Broadband Quickly: What we need to do?”, dated 17.04.2015 has inter alia, recommended the following

(i) Overhauling of multi-layered structure involved in the decision making in respect to National Optical Fibre Network (NOFN) project

(ii) Exemption of the license fee on the revenues earned on fixed line Broadband for at least 5 years.

A committee has been constituted on 29.04.2015 in Department of Telecommunications to examine the TRAI recommendations.

Question 8: (Law with the concept of Net Neutrality)

(a) Whether Government is bringing a law with the concept of Net Neutrality for consumers; and

(b) if so, by when?

Answer:

(a) and (b) Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to internet for all citizens of the country.
The issues pertaining to net neutrality are in consultative stage. Telecom Regulatory Authority of India (TRAI) has released a consultation paper on “Regulatory Framework for Over-the-top services” on 27th March, 2015 for inviting comments from various stakeholders. This consultation paper also covers the issues related to Net Neutrality. The last date for receiving comments and counter comments is 24th April, 2015 and 8th May, 2015 respectively.

Department of Telecommunications has constituted a committee in January, 2015 to examine various aspects of net neutrality and recommend overall policy and technical response to net neutrality. Committee has been asked to submit its report by May, 2015 end.

Based on the report of committee and TRAI recommendations Government will take a considered decision, in the best national interest.

Question 9: (Regulation of Over the Top services)

(a) The stand of Government in protection of Net Neutrality;

(b) Whether Government proposes to regulate Over-the-Top (OTT) services;

(c) The argument for and against for regulation of OTT services;

(d) The details of the growth of internet traffic and internet users over the years;

(e) The details of the revenue generated by different telecom companies over the years; and

(f) Whether the move to regulate OTT services will affect the growth of start-ups in the country?

Answer:

(a),(b),(c) & (f) Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to internet for all citizens of the country.
At present the issues pertaining to net neutrality are in consultation stage. Telecom Regulatory Authority of India (TRAI) also has released a consultation paper on “Regulatory framework for Over-the-top services” on 27th March 2015 for inviting comments from various stakeholders. This consultation paper also covers the issues related to Net Neutrality. The last date for receiving comments and counter comments is 24th April, 2015 and 8th May, 2015 respectively. This consultation paper covers the views of the service providers and OTT providers and related issues including net neutrality.

The main arguments in favour of OTT regulation is loss of traditional revenues from data and voice to telecom service providers, telecom service providers are subjective to all licensing and regulatory conditions whereas the OTT providers are not subjected to similar restrictions and that large scale OTT service in traditional services could significantly hampered the TSPs investment capability and growth. The TSPs are insisting on ‘Same Service Same Rules’ to maintain regulatory balance.

The main argument against OTT regulation is that the OTT players offer services through internet provided by TSPs and the TSPs are paid for internet services consumed by end users and OTT service lead to increase data usages and revenue to TSPs.

Department of Telecommunications has constituted a committee to examine various aspects and recommend overall policy and technical response to net neutrality.
Based on the report of committee and TRAI recommendations Government will take a considered decision in the best national interest

(d) Details of Internet subscribers are as under

For the period ending      Dec-2013          Dec-2014 Internet subscribers (in Crores)

As per TRAI                       23.87                  26.74

As per IAMAI-IMRB report ‘Internet in India 2014’  > 30

(e) The trend of revenue from data usage from full mobility service (GSM+CDMA) segment is given below:

                       Quarter ending Revenue from data usage (in Rs. crore)

June 2013           3057.83

September 2013 3594.83

December 2013 4240.01

March 2014        4637.89

June 2014           5259.18

September 2014 5911.05

December 2014  6457.06

Question 10: (Government websites meeting international standards of web accessibility)

(a) Whether any survey has been conducted by Government regarding the number of Government websites that meet the international standards of web accessibility;

(b) if so, the details thereof;

(c) Whether it is a fact that in an accessibility survey conducted by National Centre for Promotion of Employment for Disabled People (NCPEDP), not a single Government website was accessible; and

(d) The steps taken to improve web accessibility?

Answer:

(a) Yes, Sir.

(b) The Guidelines for Indian Government Websites (GIGW) have been adopted by the Department of Administrative Reforms & Public Grievances (DARPG) and have become a part of the Central Secretariat Manual of Office Procedure (CSMOP). The GIGW accessibility guidelines are based on W3C”s Web Content Accessibility Guidelines (WCAG) 2.0. These are internationally accepted guidelines on web accessibility and cover a wide range of recommendations for making web content more accessible.

DeitY has initiated the Website Quality Testing project which is being executed by Standardization Testing and Quality Certification (STQC) for testing and certifying the government websites. Under this project, 1000 websites have been undertaken for testing. Currently, around 950 websites of various Ministries/Departments, attached offices, societies have already been tested by STQC and test reports have been sent to the concerned Ministries/Departments for addressing the issues of non-compliance.

(c) and (d) No, Sir. However, as per the Web Accessibility Survey Report for Indian Government websites – 2012 of National Centre for Promotion of Employment for Disabled People (NCPEDP), none of 10 Government websites were able to meet even the basic accessibility standards. The Government has undertaken following steps in this regard:

(i) The Guidelines for Indian Government Websites (GIGW) have been adopted by the Department of Administrative Reforms & Public Grievances (DARPG). The GIGW guidelines adhere to the requirements of persons with disabilities and ensure compliance with level A of Web Content Accessibility Guidelines (WCAG) 2.0 as laid down by World Wide Web Consortium (W3C). GIGW has incorporated all the level A success criteria and a few success criteria from level AA. This is sufficient to make the websites accessible.

(ii) Department of Electronics and Information Technology (DeitY) has had three rounds of meetings with the Website Information Managers (WIMs) of various Government departments to sensitize the departments regarding addressing the non-conformance issues of their websites with GIGW. STQC along with e-Governance division of DeitY and NIC has conducted one-to-one discussion with the concerned departments and ministries to close the non-conformance areas.

(Sarvjeet is a Project Manager and Research Fellow at the Centre for Communication Governance at National Law University, Delhi)

Government’s Response to Fundamental Questions Regarding the Internet in India

The Ministry of Communication and Information Technology today provided answers to a number of questions, which were raised by the parliamentarians in the Rajya Sabha. We have extracted a set of 6 questions below, that deal with a host of issues including number of blocks under Section 69A of the Information Technology Act, the current status of the Central Monitoring System, Data Privacy law and Net Neutrality.

Question 1: (Emergency Blocking under IT Act) 

(a) Whether Government has issued any emergency blocking orders under section 69 (A) of the Information Technology Act, 2000 pursuant to Rule 9 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009; and

(b) If so, the total number of emergency blocking orders issued from 1st January, 2014 till date and the details and specifications thereof?

Answer:

(a) and (b) Government has issued directions for blocking of URLs on emergency basis depending on the nature of contents and consequences of spreading such contents as reported by Law Enforcement and Security Agencies, following the procedure as outlined in Rule 9 of the Information Technology (procedure and Safeguards for blocking for access of Information by Public) Rules.

Emergency blocking orders issued to block a total number of 216 URLs from 1st January, 2014 till date. The information hosted on these URLs were anti-national, provocative, communal hatred, which could lead to serious law and order problem in the Country. The URLs were blocked based on the requests of Law Enforcement Agencies including by orders passed by competent courts, in the interest of Sovereignty and Integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the Commission of any cognizable offence relating to above as per the provisions of Section 69A of Information Technology Act, 2000.

Question 2: (Blocking under IT Act)

(a) Whether Government has blocked/disabled access to certain websites and /or Uniform Resource Locators(URLs) during the current year and the last year and if so , the specifications thereof; 

(b) The total number of requests received by the designated officer and the total number of orders issued for blocking of websites and/or content under section 69(A) of the Information Technology Act, 2000 from 1st January, 2014 till date; and

(c) The total number of blocking orders revoked by the Department of Electronics and Information Technology, or any other Government agency from 1st January, 2014 till date?

Answer:

(a) and (b) Government has invoked Section 69A of Information Technology Act, 2000 to block/disable access to certain websites/URLs. Section 69A of the Information Technology Act 2000 empowers Government to block any information generated, transmitted, received, stored or hosted in any Computer Resource in the interest of Sovereignty and Integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the Commission of any cognizable offence relating to above.

A total of 255 URLs were blocked in 2014 and no URLs has been blocked in 2015 (till 31 March 2015) under Section 69A through the Committee constituted under the rules therein. Further, a total of 2091 URLs and 143 URLs were blocked in order to comply with the Directions of the Competent Courts of India in 2014 and 2015 (till 31 March 2015) respectively.

The Committee constituted as per the rules of Section 69A of the Information Technology Act, 2000 had recommended not to block 19 URLs in the meetings held between 1st January 2014 to till date.

Besides, Indian Computer Emergency Response Team (CERT-In) gets requests for blocking of objectionable content from individuals and organisations, which merely forwards those requests to the concerned websites for appropriate action.

(c) Two orders were issued to revoke the 251 blocked URLs from 1st January 2014 till date.

Question 3: (Central Monitoring System)

(a) The status of implementation of the Central Monitoring System (CMS) set up by Government for lawful interception and monitoring of communications;

(b) The details and salient features of the system, including the nodal agency implementing CMS;

(c) The total expenditure approved and incurred by Government for setting up of CMS;

(d) Whether it is operational, if so, in which parts of the country; and

(e) If not, the time-frame within which setting up and operationalization of CMS across the country is expected to be completed?

Answer:

(a) and (b) Sir, the responsibility for execution of Central Monitoring Systems (CMS) has been entrusted with Centre for Development of Telematics (C-DOT). Most of Research & Development work has been completed. The Centralized Data Centre has been installed. Interception Store & Forward Servers (ISF) at the premises of Telecom Service Providers have been installed. Civil & electrical related environment works are at final stage of completion for the Regional Monitoring Centres. Installation activities at Regional Monitoring Centres have been initiated. Testing work has been initiated at Centralized Data Centre.

The envisaged salient features of CMS are as follows:

(i) Direct Electronic Provisioning of target number by a Government agency without any manual intervention from Telecom Service Providers (TSPs) on a secured network, thus enhancing the secrecy level and quick provisioning of target.

(ii) Central and regional database which will help Central and State level Law Enforcement Agencies in Interception and Monitoring.

(iii) Analysis of Call Data Records (CDR) to help in establishing linkage between anti-social/anti-national elements.

(iv) Research and Development (R&D) in related fields for continuous up gradation of the CMS.

(c) The CMS project has been approved by Cabinet Committee on Security with Government funding of Rs. 400.00 Crores. The equipment worth Rs. 255 Crores has been purchased and installed against which an amount of Rs. 149 Crores has been paid.

(d) & (e) Presently project is in roll out phase and not operational. The commissioning of CMS Delhi has been planned in phased manner. The Delhi and Karnataka Licensed Service Areas have been planned for initial roll out. 

Question 4: (Multi-Stakeholder model of IG)

(a) The Government’s view on the future on Internet Governance, given its opposition to the widely held multi-stakeholder model propounded at NETmundial;

(b) The Government’s rationale behind not conforming to the Multi-Stakeholder model for Internet Governance put forward at the NETmundial; and

(c) How Government supposes that the Multi-Stakeholder model impedes the principles of being multilateral, transparent, democratic, and representative, with the participation of Governments, private sector, civil society and international organizations?

Answer:

(a), (b) and (c) Government will take a view on the future of Internet Governance taking into account all issues which affect Internet’s growth and India’s interest in the matter.

Question 5: (Data Privacy and IPR Laws)

(a) The steps taken by Government to engage the India-US Working Group on Information and Communication Technologies (WG-ICT) on Digital India initiative thus far;

(b) Whether Government has the requisite measures for data privacy and intellectual property rights of local and foreign manufacturers in place to ensure an attractive IoT Market in India; and

(c) If so, the details thereof?

Answer:

(a) The meeting of the Working Group on Information & Communication Technologies (ICT) was held during 14th -15th January 2015 in Washington DC, USA. Amongst other issues, the two sides discussed cooperation framework under the Digital India Programme. Further a Joint Declaration of Intent for cooperation in the field of Information & Communications Technology and Electronics has been signed between the two countries on 20th January, 2015. One of the objectives under the aforesaid Joint Declaration of Intent is to explore the opportunities for collaboration in the course of implementation of India’s ambitious Digital India programme.

(b) and (c) The Information Technology Act, 2000 has adequate provisions for data protection and data privacy in digital form. Sections 43, 43A and 72A of the Information Technology Act, 2000 provides a legal framework for privacy and security of data in digital form. Further, Indian laws relating to Intellectual Property Right have been suitably amended and are TRIPS compliant

Question 6: (Net Neutrality and OTT Services)

(a) Whether there have been reports of private operators attempting to charge consumers premium rates for the use of services provided by Over-The-Top players;

(b) If so, the details thereof;

(c) The steps being taken by the Ministry to protect consumers from similar attempts in future; and

(d) the steps being taken by the Ministry to safeguard investor sentiment in the telecom sector?

Answer:

(a) & (b) Telecom Regulatory Authority of India has reported that M/s. Bharti Airtel Limited reported that effective from 23.12.2014, all internet/data packs or plans (through which consumers can avail discounted rate) will exclude Voice Over Internet Protocol (both incoming and outgoing) and standard data rates will be applicable for VoIP. Subsequently, M/s. Bharti Airtel limited reported withdrawal of the same with effect from 26.12.2014.

(c) Does not arise in view of (a) & (b).

(d) Telecom licenses are governed by license agreements which are entered by Department of Telecom (licensor) with telecom service providers (licensees). At present 100% Foreign Direct Investment (FDI) is permitted in the telecom services sector, with 49% through automatic route and beyond 49% through Government route.

Both the domestic as well as Foreign Investors have to follow the laws of the land and are treated at par. As far as FDI is concerned, the investment is protected through Bilateral Investment Promotion and Protection Agreements signed by India with 72 countries.

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(Sarvjeet is a Project Manager and Research Fellow at the Centre for Communication Governance at National Law University, Delhi)