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TRAI's pre-consultation paper on net neutrality raises concerns on privacy and national security

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TRAI's pre-consultation paper on net neutrality raises concerns on privacy and national security

TRAI has released a pre-consultation paper on net neutrality in an attempt to reach out a consensus regarding this issue. With the rise in various available services the characteristics and bandwidth requirements keep changing. Telecom Service Provider’s (TSPs) may be required in terms of services that consume high bandwidth to protect the integrity of the network and provide appropriate quality. The pre-consultation paper is an attempt to identify the relevant issues in areas such as understanding the importance of unrestricted access to the internet, transparency and informed choice by users, customer privacy and national security.

The Department of Telecommunications (DoT) has also sought the recommendations of TRAI on the subject of net neutrality, including traffic management techniques and the economic, security and privacy aspects of the OTT services.

In the past TRAI had issued a consultation paper on “Regulatory Framework for Over-the-top (OTT) services” on 27th March, 2015.  In December, 2015, the regulatory body issued a consultation paper on ‘Differential Pricing for Data Services’. DoT had also constituted a high level committee to examine the issue of net neutrality and other associated areas. The committee submitted its recommendations vide a detailed report which was released in May, 2015.

Major Concerns

Traffic management is one of the core issues stated by TRAI in the pre-consultation paper. TRAI has asked its stakeholders the reasonable traffic management practices that may need to be followed by TSPs while providing internet access services, and in what manner could these be misused? Are there any other current or potential practices in India that may give rise to concerns about net neutrality?

Traffic management involves techniques that often include the use of performance measures to define optional service levels tailored to different user needs, and to assure appropriate quality of service or safeguard network security. In the increase in internet traffic, especially video content, TSP’s are prompted to devise strategies to address network related capacity and capability issues.

As per CISCO's Visual Networking Index Forecast, internet video traffic (business and consumer, combined) is expected to constitute 74% of all internet traffic in India by 2019, up from 46% in 2014. Any capacity constrains being faced on account of increased user traffic will eventually have to be addressed through an overall improvement in the network infrastructure.

TRAI suggests some practices may be regarded as unreasonable interference with internet traffic by a TSP. Like blocking of applications, websites or any other content on the internet, slowing or throttling internet speeds, preferential treatment of applications, websites or any other content on the internet; discriminatory tariff for data services based on the applications, websites or other content being accessed by the user, which has already been prohibited by the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016, inspection of the contents of data packets, except to meet lawful requirements or to maintain the security of the network.

Another area of concern for TRAI is unrestricted access and transparency. TRAI has also asked its stakeholders what should be India's policy and/or regulatory approach in dealing with issues relating to net neutrality? What precautions must be taken with respect to the activities of TSPs and content providers to ensure that national security interests are preserved?

The internet has become a key link to user choice, innovation without permission, and low costs of application innovation. The terms of the Unified License, that set out the scope of internet services, specifically require TSPs to ensure that subscribers have unrestricted access to all content available on internet, subject only to lawful restrictions. According to TRAI, the adoption of clear transparency standards is one of the methods that can be used to check TSPs from imposing unreasonable restrictions on the provision of internet access.

TRAI has also questioned the customer privacy and national security that may be at risk due to several OTT players who do not follow the same regulations as TSP‘s. Besides security challenges at the national level, OTT communications and OTT media can also pose a threat to the privacy of individual users. This according to TRAI calls for a need to examine the legal and regulatory framework required for governing the privacy of users of OTT services.

TRAI asked its stakeholders what precautions must be taken, with respect to the activities of TSPs and content providers to maintain customer privacy, and what further issues should be considered for a comprehensive policy framework for defining the relationship between TSPs and OTT content providers?    

TRAI has cited the example of other countries like Australia, which does not have any specific ex-ante law governing net neutrality. Brazil enacted the Marco Civil da Internet, popularly known as the Internet Bill of Rights, in 2014.The Marco Civil lays down strong privacy, data security, freedom of expression and network neutrality rules. The network neutrality provisions in the law require internet providers to treat all data on the internet equally, regardless of content, origin and destination, service, terminal or application.

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