The issue of net neutrality has again acquired centre stage with Free Basics and the debate it has generated. To understand the various aspects of Free Basics and whether it actually impinges on net neutrality, Anand Mishra, Editor, Governance Today, spoke to Pavan Duggal, who is one of Asia’s foremost experts in the area of cyber laws and cyber security and is widely recognized as one of the top ten cyber lawyers in the world. He has been on the panel of consultants to UNCTAD and UNESCAP on Cyberlaw and Cybercrime respectively. Besides, he has been a member of the ICANN Nominating Committee representing the Asia Pacific region. Edited excerpts

Pavan Duggal, Consultant, Cyberlaw and Cybercrime

How do you see free basics as an initiative to offer free internet? Many people say it is against the basic tenet of net neutrality. TRAI has put it on hold.

First and foremost, Free Basics is not the same thing as free Internet. When you talk of free Internet access, it, as a concept, means free and complete access to entire Internet. What Free Basics is offering is only a limited access on a free basis to a limited number of websites. It is not open for all websites; it offers free access to certain websites and if you go outside those websites, you are charged on a discriminatory basis.

Secondly, while Free Basics has been presented as a noble objective and helps to bring large number of people onto the Internet bandwagon, it has a problem in that it is effectively making competition impossible. If you offer something for free, you are eliminating competition because there cannot be anything below free. To that extent, lot of service providers feel that such free programs could become anti competition and can tantamount to restrictive trade practices.

The argument of Facebook that some access is better than no access, has its own ramifications. But the way Free Basics has been touted as free access to Internet is not right. Many people believe that it is free access to entire Internet, which it is not. In it, you are getting access only to Facebook and certain sister websites on a free basis; you go to any other website, you will be charged.

It is in a sense, not just discriminatory; it is giving a distorted picture of Internet to those people who have not yet come on internet platform yet. If they come online through this program, they would only consider Facebook and its sister websites to be the Internet.

So, there are some intrinsic issues with the program and that’s why TRAI has said, let us examine whether it violates net neutrality. According to the net neutrality, the network has to be neutral. It also means that everybody should have equal access to Internet and should be able to use it in any manner they deem fit, including the right to choose the website. In Free Basics, this freedom and the right has been given a bypass. That effectively is like creating digital islands on Internet which will be acting in silos, and not in conjunction with each other. And subscribers to these services are captives.

To that extent, it is akin to digital collonialization. You are creating digital colonies without people even knowing about it and deciding on whether they want to be part of it. As such, nuances of the program need to be discussed. However, people are sending petitions to TRAI in support of Facebook without realizing what they are doing. They only read first couple of lines, sign by ticking “I accept” and move on to using Facebook. They are not given the choice to say which part of the list of conditions they agree or disagree with. They cannot even determine whether what Facebook is saying is correct or not. Finally, even if they read, majority cannot understand.

What is the major problem area with free basics that people are so against about?

I see some basic problems in Free Basics program in India. First of all, you should read its terms and conditions. The terms say that Facebook is interested in your data, and can use it. If any sane person reads the conditions, he will not use Facebook. People need to realize that there is no such thing as free lunch. If something is being offered as free to you, in all probability, you are the product. In this case, subscribers of Free Basics are the product. Actually, there is nothing philanthropic about it. Facebook is interested in having access to the free data of the people who are currently not on Internet which they can use for evaluation, projection of for any other purpose they deem fit.

Facebook is basically a data driven company. So, people should jump on to the program only after understanding pros and cons of the same.

In fact, such programs can impact India’s sovereignty and integrity at a later stage because huge number of Indians who are not online now, will become captive to the Free Basics program. And that entire data will be monitored by Facebook. People will have a much distorted view of what Internet is, and they will be given only that data which Facebook will want to. To that extent, even the fundamental right to life could be impacted and it is government’s responsibility to ensure that the right to life as provided under Article 21 of constitution is protected. It needs to protect them from exploitation by service providers.

TRAI had asked for responses on the issue from public. What is happening of that end?

What TRAI is basically trying to do here is to ascertain what should be India’s position on the issue of net neutrality. Under the TRAI Act, it can give recommendation to the government. It has come out with some consultation papers, and opened them for public comment. It is now collating these comments and after studying those comments, would make recommendation to the government.

The problem is that India does not have a documented stand or policy on net neutrality. The Information Technology Act 2000, which governs the Internet, is completely silent on it. So, the noise is that India should have its own dedicated law on net neutrality. TRAI came up with a document earlier, which created lot of protest. The government said we will take all opinions and viewpoints into account; the central Information and Communication Minister has said by and large we are for net neutrality. In this light, the TRAI has said let us see whether Free Basics program violates net neutrality or not. And till that time, let it be temporarily put on hold, which is the right and logical thing to do.

Facebook has said it is open to the idea of including other rival social networks like Twitter or Google + on Free Basics, and for a third-party audit done for the platform. Can that make it net neutral?

But it does not change the fundamental nature of Free Basics, which is that it offers free access to Facebook and a limited number of other websites. What also does not change is the fact that the data of individuals can be monetized by Facebook. Third, you are basically demolishing peoples’ right to choice. So merely getting third party audit done does not solve the problem that the program is intrinsically designed to exploit data. The question is whether the government is going to bite the bullet; will it allow the data of Indians to be mortgaged? I think the reason that the Free Basic program is targeted to India is that India does not have a dedicated law on data protection. We don’t have a law on privacy either. So, there is nothing to protect the data of the people. I would compare this program to an elephant which has one set of teeth for showing and another set of teeth for eating. I can understand if you allow free access to everything on Internet, which will be a different ballgame altogether. But the Free Basics program is not offering that.

The basic thrust of Facebook is that some free Internet is better than having no Internet at all and Free Basics offers some Internet for free. How do you react to that?

The question is whether you want to be free or be in a golden cage. This is a choice you have to make. After reading the conditions of the program, I am absolutely clear that the person who has not been on Internet cannot understand the nuances of the program. And if you cannot understand what you are signing on, you can mortgage you freedom away. So, would you want to be in a pre-1947 digital era?

My suggestion is let us not fall to small temptations. India is the biggest democracy in the world; it is the second biggest e-commerce market. It is also the second largest Facebook user base. Facebook should therefore have far more respect for India and not treat it with such disdain that instead of not having anything, we would give you something for free. I would have liked them to mention specific terms and conditions. But this program is governed by Facebook terms and conditions which anyway says your data is not yours, it is mine. Everything you put on it can be monetized, used, transferred, shared or even sold. Now is the age of data driven economy and under the garb of free Internet, they want to have access to data of huge number of Indians. But those people who don’t understand the nuances of the program, should not be allowed to be exploited by service providers.

If we brush out the initiative of Facebook and just talk about the idea of offering free access to complete Internet, may be to students, can government do it? It is technically possible even?

Well, it is certainly technically possible, and government should try it. It will of course require resources. India has been trying to fight poverty. It has not been completely successful, but it is still trying. Similarly, they should keep trying to offer free Internet access to all without discriminating on basis of websites. That is a sovereign function of government. In any case, constitution provides for the fundamental right to life and facilities that are necessary for it. Today you cannot have a dignified life without free access to Internet. So, if you allow such discriminatory programs that give a concocted view of the Internet, it could in future challenge the government.