Wire Trap

Net neutrality and India’s long history of controlling technology

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. Gautam Singh / AP Photos
01 June, 2015

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 graduate student at the Fletcher School of Law and Diplomacy at Tufts University. He studies the role of emerging powers, especially BRICS countries, in democratising international politics.