Yesterday's brief comment on the proposal mooted by some
ISP is in India to block popular sites such as Yahoo and Hotmail has evoked
wide spread comments. Most of the respondents have found it hard to believe
such a proposal could be existing because they see no valid reason for the
same.
Frankly, I also see no valid reason for such a move which
is an anti customer move and could be a PR disaster. It could also attract
consumer action and threaten the ISP license itself without necessarily being
a wise move commercially.
In order to remove the doubts about the origin of the news
report, I give more details of the proposal and how it seems to have
originated.
The news item was picked from the Hindustan Times Net
Edition of July 27, 2002, where an
article by Mr Soumendra Sahu reported the proceedings of the executive
committee meeting of ISPAI (Internet Service Providers Association of India).
It was stated that the proposal was mooted by a Rajastan based ISP by name
Data Infosys and is supported by Satyam and Data Access. Caltiger and
Net4India appear to have opposed the move while MTNL and VSNL have at present
not taken a view. The secretary of the ISP is however quoted as saying that
"The association will resolve the issue through mutual discussion before going
ahead with the blocking".
The reason quoted by ISPAI is that portals like Yahoo,
Hotmail and E-Bay are accessed through the services of the ISP s and should
therefore contribute part of their earnings to the ISPs. In order to make this
possible, ISP s should first stop access to these services.
Comments:
The proposal of ISPAI to demand money from the portals
which are visited by their customers is down right silly. It is hard to
believe that a Company like Satyam who runs its own portal should ever be even
considering such a move. The officer of Satyam who has attended the meeting
and let this view pass has done a great disservice to the image of Satyam both
from the point of view of exhibiting lack of sensitivity to consumer's views
as well as the self defeating nature of the proposal itself.
Self Defeating Nature of the Proposal:
Imagine VSNL and Dishnet stating that Sify should pay a
part of the portal's ad revenue to them since a part of the visitors
come through VSNL and Dishnet access accounts. If Satyam can expect revenue
from Yahoo and Hotmail, there is no reason why VSNL and Dishnet cannot expect
a similar revenue from Satyam.
Secondly, if some customers of an ISP are visiting a
popular website repeatedly, the time they spend there is directly bringing
benefit to the ISP. Like the proverbial dog Vs Tail, who wags whom, ISP s seem
to be thinking that it is because of them that Content providers exist on the
Internet. It is essential for them to first understand the medium of Internet
and appreciate that it is the attractive content or service that makes people
access Internet and provides bread and butter to ISPs. If a client goes to
Yahoo and plays a game of Chess for 30 minutes, the ISP which has provided the
access gets a direct benefit of the usage of access hours. It simply defies my
logic that the ISP s are unable to understand this simple truth.
If this argument has any value, then there can also be a
demand from the ISP s that sites which post heavy files such as "Images" have
to pay more than sites that post text data.
If however, ISP s feel that the charges they are now
levying for bandwidth usage is not sufficient, it is for them to increase
their service charges or change over the pattern of charging from "Hours of
Usage" to "Bandwidth Used". Trying to discriminate the users based on the
sites they visit is foolish to say the least.
ISP s should however remember that today they are making
fraudulent gain by various means including "Choking the bandwidth deliberately
so as to increase the hours of usage". For example, if an ISP offers 33.6 KB
or 64 KB bandwidth, they actually shrink the bandwidth available to the
consumer by sharing the pipe with too many customers. The actual data transfer
speed on an average is perhaps less than 50 %. More over,
the uptime of most of the Indian ISP s is below acceptable international
standards and the consumers pay for frequent disconnections or malfunctioning
of the servers at the ISP end.
ISP s are also indulging in many anti consumer activities
such as "Eating E-Mails" of the customers and if Consumers have not so far
brought legal action on the ISPs for these sub optimal services that they are
rendering, it is only because the Consumer organizations in India are
not focusing on the requirements of Netizens and informed consumers also
understand the technical problems in an emerging high tech service.
If ISP s think that the Consumers can be taken for a ride
and charged for the inefficiencies of the ISPs, the faults of the telephone
systems and also for visiting sites of their choice, they are taking on the
Net Community is a losing battle and will invite the wrath of the community.
Licensing Terms:
I am not able to comment on the ISP licensing terms at this
point of time and leave it to some of the other experts. One view of the
industry is that the ISP has the discretion to determine what service he
provides and he cannot be compelled to allow access to any website.
In the past, ISP s have fought for their right to allow
access to any website against objections of regulatory agencies. There are
some ISPs who have refused to block anti Indian sites when demanded by the
regulatory authorities taking refuge under "Freedom to Information Access".
Similarly, many ISP s are not willing to block porno sites stating various
technical reasons. When they seem to oppose regulation of their activities in
these cases which is in public interest, it is strange that they now want to
regulate the content that the customer can view, for commercial
considerations.
Without further detailed analysis of the ISP guidelines, I
can only say that if the regulatory authorities think that ISP's action of
blocking Yahoo or Hotmail are arbitrary restrictions placed on the fair use of
the medium, they should have the right to cancel the license.
Such powers will anyway be available to the regulators
under the next piece of legislation that is likely to become a law soon.
Implications of ITA-2000
By trying to exercise their right to regulate what the
users of ISP can view, ISP s are also admitting that they will be technically
capable of blocking certain sites at their pleasure. This will remove the
defense they so far had to oppose regulator's instructions for "Interception"
of communication or blocking of websites.
ITA-2000 had provided section 79 to keep the ISP s
free from liabilities for the content that passes through them by
creating a separate status as an "Intermediary" of a communication message. It
was under this status that they could absolve themselves of any liability for
the content accessed by the users.
If ISP s now express their desire to take control of the
content, they will also be expressing their willingness to be held accountable
for the content. If then, any ISP receives a notice about either a porno site
or a terrorist site and they do not block them, they can be charged for
Distribution of Obscene electronic documents, Abetment in Terrorist activities
etc and can be punished under IPC, ITA-2000 as well as POTA.
I wish the ISP s think carefully before shedding the
protecting veil of "The status of a Neutral Data Carriage Intermediary" and
assuming the role of "Selective Content Distribution Service". The
responsibilities cast on them in such changed role are far too many for them
to digest.
As a PR Exercise, companies like Satyam will do well
to clarify if they are advocating this change. Their silence will be construed
as endorsing the position that they consider themselves not as "Intermediary"
under Section 79 and Section 2 of ITA-2000 but as a "Content Distributor To a
Closed list of Members". This may be used against them in any legal action
where they express inability to block objectionable content.
Naavi
July 28, 2002
ISPAI Secretary Denies Report
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