Month: April 2015

April 28th 2015: Losing my cool at the DoT meeting on Net Neutrality

A few of us, Kiran Jonnalagadda, Apar Gupta, Raman Chima and Pranesh Prakash met outside Sanchar Bhawan, which houses India’s Department of Telecommunications (now Ministry of Communications) on April 28th 2015. The security guards checked our names with a list and let us through. We were there for a meeting with the Net Neutrality committee that the DoT had put together. 

The committee, we were informed when we received an invite on April 23rd, intended:

1. To examine the pursuit of net neutrality from a public policy objective, its advantages and limitations.

2. To examine the economic impact on the telecom Sector that arises from the existence of a regulated telecom services sector and unregulated content and applications sector, including over-the-top (OTT) services.

3. To examine, assess and specify qualifications on the applicability of the principal of net-neutrality from the security, traffic management, economic, privacy and other stand-points.

4. To recommend overall policy, regulatory and technical responses in the light of examination and assessment of the issues in the first three terms of reference

We had been invited because the “Committee has decided to have interaction with Civil Societies / Academia  representatives”, and “it has been decided to have one participant from each invitee organisation in the interaction.” I didn’t know which organisation they meant, because we were a loose collective, and this invite came to my personal email ID. I wasn’t working on MediaNama work anyway, and hadn’t been doing that since the campaign went live.

The security guards checked our IDs and whether we were on the list. Naresh Ajwani, who said he was with APNIC, the regional Internet address registry for the Asia–Pacific region, walked in after us. I didn’t know know him well, but I knew him by face and had heard his name before at the various telecom related meetings I had gone to. 

The telecom policy space is full of grey haired folks who have been around for decades, but frankly don’t bring much to the conversations apart from the relationships they have built over the years. I didn’t think much of his being there, but in hindsight it did feel like an anomaly: I don’t remember any of the usual telecom policy suspects being there. However, he represented APNIC, and I thought he would bring in a global interconnection perspective to it. 

We went up to the 5th floor, I think, and via a narrow passage, entered what looked like a conference room. It was fairly dimly lit, there was, from what I remember, only one row right at the end. I took my place next to Pranesh Prakash of CIS, whom I had been sparring with online about Net Neutrality, but we were, and still are, friends. We still disagree on many things.

Pranesh had an Ubuntu laptop, and an intriguing notetaking app which I asked him about during the consultation. We took turns to speak, and after some of us had spoken, Naresh Ajwani piped in. He slipped in one line at the end that pissed me off: he said that these people running the campaign are funded by Ford Foundation. 

I had a decision to make then and there, and I took a call: this has to be shut down immediately and harshly. Instead of addressing the DoT committee, I turned to him and told him off, yelling at him: asking him for proof, saying he can’t have any proof because there isn’t any, and that I’m sick of these unfounded claims being thrown at us by people who don’t understand the issue, and are are trying to politicise something that’s of deep importance to us, and casting aspersions on our integrity by making such personal remarks. I reiterated that we hadn’t taken any money and asked him for proof again.

He appeared to be taken aback, as were the folks from DoT: no one had yelled at a regulatory meeting any more. The DoT folks jumped in and told him to refraining from making any unfounded claims and to stick to the substance. After the meeting ended, as we were walking out, someone from the DoT came to placate me. I told them it’s not a problem. Near the elevator, Ajwani put his hand on my shoulder and said something conciliatory. I ignored him and pushed his hand away. He continued making conciliatory statements and I walked on.

Losing my cool was worth it. We never heard that Ford Foundation jibe again.

April 6th 2015: Breaking the Flipkart-Airtel Zero story

Sometime during the first week of April in 2015, I learned from someone that Airtel is planning to launch a Zero Rating service, and Flipkart will be the first to sign up for it.

Flipkart was the darling of the startup ecosystem in India, and its founders Sachin Bansal and Binny Bansal (who are not related) were stars. They were solely responsible for the growth of e-commerce in India, and for me, the founding of Flipkart and its subsequent growth remains one of the key moments for India’s Internet growth. Ajit Balakrishnan, the founder of Rediff had once explained how important the growth of ecommerce is for a country’s Internet access: Ecommerce increases advertising spends, because of a direct linkage between advertising and transactions. This means that the growth of e-commerce fuels the growth of advertising, which in turn fuels the growth of content. Sachin and Binny were also extremely competitive (at that time, competing with Amazon, Snapdeal, Jabong and a few others) and were extremely aggressive in their approach. They were in an environment that demanded that aggression.

My source – and I don’t even remember who it was – suggested that there was strong push-back within Flipkart’s engineering team against them signing up with Airtel for Zero Rating services.

Flipkart had an on-going relationship with Airtel: In November 2014, it had partnered with Airtel for something called “OneTouch Internet”, which was merely a WAP page that listed certain Internet services that were offered on a trial basis to access to Internet users. Half a year before this launched, Airtel CEO Gopal Vittal had said that they wanted to change the vocabulary of the Internet, from data (i.e. selling MBs or GBs) to content packs: essentially users should buy access to specific apps and websites instead of buying data.

I knew where this was coming from: Airtel used to run a closed WAP portal called Airtel Live, which enabled access to various services, including caller ring-back tones, news, ringtones, images (GIFs), short videos. These services were provided by third party firms like Onmobile Global, One97 (which also owned Paytm), ValueFirst, Spice Digital, among others. These companies were vendors for content. On the other hand, I was acutely aware of what Facebook had done with fan pages: one fine day, reduced reach that publishers and creators had spent money building, and said – pay for reach. This bait and switch was common. Platforms encourage on-boarding, increase fragmentation of suppliers, and then monetize the aggregation by adding a distribution charge, in a manner that no single supplier has sufficient negotiating power against the platform. In case of Telecom Operators, that charge would be service specific, like it was with VAS. Airtel OneTouch, at least the way I saw it, was the beginning of that bait-and-switch, currently being pitched as a try-and-buy offer. This Try-and-buy approach resurfaced later with Gigato, but that’s for another post.

I asked Flipkart two questions then, which I didn’t get a response for:

  1. Do you pay Airtel for the provisioning of your service to Airtel customers?
  2. Do you get any revenue share for provisioning of your service to Airtel customers?

I can only guess now that Airtel One Touch was a showcase of the ability of Airtel to convert users into customers, and between November 2014 and April 2015, they had driven enough conversions for Flipkart. I did what journalists do when trying to break a story: pick up the phone and call one person after another. I had to be quick though: word gets around once you start calling people. Once I had confirmations that this debate was raging inside Flipkart, and from within Airtel that this was being launched and Flipkart was on-board, I sent formal mails out. I had questions ready. I mailed both Airtel and Flipkart at around 7pm ( the last confirmation, a key one at that, came in the evening on Friday, April 3rd, 2015), knowing that I was running out of time, and the weekend had begun, which meant that the likelihood of a response was limited.

We’ve confirmed from three reliable sources that Flipkart has done a Zero Rating deal with Airtel. By Zero Rating, I mean that Flipkart users on Airtel will not have to pay any data charges when using the Flipkart App. As you might be aware, the TRAI, in its consultation paper on OTT licensing and Net Neutrality, has said that this is a violation of Net Neutrality.

Would appreciate it if you could answer the following questions on this deal:

  1. Does Flipkart have exclusivity in the shopping/ecommerce category in this Zero Rating deal with Airtel?
  2. Has Flipkart closed similar deals with any other telecom operator?
  3. Is Flipkart in talks with any other telecom operator for similar deals?
  4. Is there any preferential bandwidth allocation as a part of this deal? As in, will specific bandwidth speeds be allocated to Flipkart, so that access to Flipkart is faster than it is ecommerce/shopping apps or sites?
  5. Does this deal involve any throttling of other ecommerce sites or apps? As in, will other ecommerce sites or apps be slowed down by Airtel so that the Flipkart app appears faster?
  6. What is the price being paid by Flipkart, on a per MB basis, to Airtel for making Flipkart free?
  7. Is this a part of the Airtel OneTouch Internet access gateway?

Would appreciate it if you could respond to this by tomorrow.

thanks,
Nikhil

Simultaneously, I sent the same questions to Airtel. Next morning. At around 9.15 AM next morning, I followed up with both. Flipkart said it would get back to me. Almost immediately, I followed up with more detail this time, this time cc’ing Binny Bansal and (then Chief People Officer) Mekin Maheshwari as well:

“We’ve further heard from sources that Flipkart is paying Airtel Rs 1000/gb data transfer for this deal. Would appreciate if you could confirm or deny this figure. If incorrect, would appreciate if you could share the actual figure.”

I sent the same to Airtel. Initially, in comparison with Flipkart saying that they’ll get back to me, Kinshuk Gupta of Airtel said that it’s the weekend and they need time. He must have had a chat internally, because he then called to schedule an interview with me later in the day, with Srini Gopalan, the then Director- Consumer Business for Airtel.

In the interview Airtel confirmed that the program was called Airtel Zero, and that it’s being offered to startups to Zero Rate their services in a non-discriminatory manner, but declined to confirm or deny that Flipkart is on it. Around half an hour after the interview, Flipkart sent a non-committal response, saying:

“We would not like to comment on speculation regarding any future associations that may or may not happen. All our activities in the past have always been completely compliant with all laws including those formed by TRAI – and we continue to remain committed to that.”

In journalistic parlance, the absence of denial is treated as something of a confirmation: it is the smoke that indicates that there is fire. Companies don’t outrightly deny something that has legs because they don’t want to be called out for lying later. It’s not that they don’t lie, though, but this impacts trust.

I had my source-based confirmation about Flipkart anyway, including from sources within Airtel.

Still, I sent the following follow up, irritated:

since this mail mentions “future associations”, are you saying that no deal has been closed with Airtel yet? My sources in Airtel indicate that the deal is done. Please confirm or deny.
The TRAI has said that Zero Rating is a violation of Net Neutrality, but that there is no law governing Net Neutrality in India. Hence, Flipkart’s tie-up with Airtel would not violate any laws, but the principle of Net Neutrality.

In the meantime, 45 minutes after this email that Flipkart never responded to, Airtel sent a useful follow up about Airtel Zero:

(1) Airtel Zero is an open, non-discriminatory platform that is a real win-win for customers and e-commerce app players.
(2) It is in sync with Governments vision of digital inclusion and make in India vision.
(3) Customer doesn’t pay data charges either for the entire app or part of the app depending on what the player has opted. Complete app or some part of the app can be made toll free.
(4) One of the most effective way of marketing and get app downloads by a customer. From the pilots undertaken we have seen that on an average if a player pays Rs. 100 to generate a download using digital marketing, he will end up paying 1/3 in Airtel Zero.

On Monday, before I reported on the interview, the Hindu carried a small story about Airtel Zero in the newspaper, not realising the significance of this development. I had made the mistake of not pushing the story out on Saturday or Sunday, and waiting till Monday. Thankfully they had no inkling of the Flipkart deal, and it was likely that Airtel had decided to speak with someone apart from me as well, so that there isn’t all critique.

I reworked my story to focus on the Flipkart angle, in order to differentiate it from the story in the Hindu. Looking back it almost appears that I buried the Airtel interview below the Flipkart bit. Airtel hadn’t denied that they were charging startups for being zero rated, but didn’t comment on the rate. Expectedly, the Flipkart angle made further headlines — it even made TV news. The backlash against the startup that most people in the Indian startup ecosystem idolised began.

I went back to this story to get a sense of where I was at the time I wrote it. I was in a tricky situation as a journalist — I was reporting on something that I was already campaigning against online. Shefaly Yogendra, my mentor, used to ask me about whether I’m an entrepreneur or a journalist. My answer eventually was that I am an entrepreneur AND a journalist. This campaigned changed that: I was now an entrepreneur, journalist and an activist.

My disclosure offered a hint that I don’t know other people picked up on:

Disclosures: Readers should bear in mind that MediaNama has always taken a strong pro-Net Neutrality position. Our coverage here. Personally, I’m helping create awareness of the issues that might arise from anti Net Neutrality regime.

The big-bang “awareness” outreach was still 6 days away.

The story precipitated a debate, especially in the startup ecosystem, about what is wrong with Airtel Zero, and the fact that it enables user acquisition. The same argument I had with Prashant Singh seven months before this, now became a mainstream debate.

I published a critique of Airtel Zero the next day that went viral: multiple publications asked me if they could republish it, and I eventually released it under CC-BY, so that everyone could republish it, and get the word out.

The idea of “Splitting India’s Internet into many Internets” would become a critical argument in our submissions to the TRAI going forward, and drew from my previous critique of Internet.org when Mark Zuckerberg hadn’t taken questions related to Net Neutrality.

Apr 04, 2015: Civil Society, Shreya Singhal and the lack of interest in Net Neutrality

While Apar and Amba worked on the answers to the TRAI papers, Kiran and the tech team — I didn’t know anyone that Kiran had brought on board at the time — were building the tech, and AIB was working on the script for the video.

We had no real research backing us, though, and we didn’t know how things had shaped up anywhere except in the US.

On April 2nd, I got an email from Chinmayi Arun and Sarvjeet Singh from the Centre for Communications Governance at the National Law University, Delhi. Chinmayi had set up that centre, and her comments and interventions had helped us build much understanding of the Shreya Singhal case. She had this ability to make the most complex points simply, just as Anja Kovacs, the founder of the Internet Democracy Project (which sadly doesn’t exist anymore) has this incredible ability to humanise any issue — of making you feel strongly for an issue in terms of its impact on people and society.

The email read:

The Shreya Singhal judgment is an opportunity to reflect on the efforts that resulted in the successes within the judgment. It is also a good time to consider what options the judgment opens up for those of us who work with free speech online and offline, and to evaluate the different avenues where intervention may be useful.

We are hosting a discussion on ‘The Shreya Singhal Judgment and the Way Forward’ on 4th April 2015 (Saturday) at Lecture Room-II (Basement), India International Centre- Annexe, New Delhi. Apar Gupta and Raman Jit Chima were kind enough to help us put together this session and draft the concept note for the session which is attached to this email. A draft schedule is attached here so that you can plan your time with us easily. 

We hope to bring together those who contributed to the judgment, and those who do work connected with it, so that we may build on it to seek a better legal framework to protect online speech. You are an important part of this conversation and we do hope that you will be able to make it to the discussion.

Given your contribution to the case and your expertise, we hope that you will join us as one of the resource people for the sessions titled ‘Other Significant Battles for Internet Policy’ from 6.00 pm to 7.00 pm. We will ask you to discuss the issue roughly six minutes. After all the resource people have finished, there will be an open discussion with the audience. Given the paucity of time and the number of people, we have not been able to accommodate everyone on the different panels we would hope for. However, given how integral you role was in the outcome of the judgment, we would be glad if you would be a part of the discussion all through.

We apologise for the short notice. We wanted to take advantage of the energy around the judgment before everyone moves on. We would be grateful if you can confirm your availability at the earliest so that we can circulate the final schedule to all the participants. 

I thought about declining: this was a critical moment for the Net Neutrality campaign, and I have a habit of looking forward, and not looking back. We got the judgment in Shreya Singhal… when such a critical issue like Net Neutrality is upon us, where we’re completely outgunned by large telecom operators who appeared to have the TRAI Chairman Rahul Khullar on their side, why would be discuss the Shreya Singhal now? The panel on “Other Significant Battle for Internet Policy”, was however an opportunity for me to inform those in the room about Net Neutrality and what we were doing, but that was the last panel of the day, inconveniently, from 6PM to 7PM.

It wasn’t that the Shreya Singhal judgment wasn’t important for me: I had been involved in the case as a reporter, and I had reported especially on Section 66a extensively. The Mouthshut vs Union of India case was because of an interesting situation that had arisen. Mishi Choudhary, the founder of SFLC.in had contacted me to become the petitioner to challenge Section 79A of the IT Act, which allowed anyone to send a notice to a platform, and get content taken down. If the platform doesn’t remove the content, they have liability for it. I gave Mishi a better petitioner: Faisal Farooqui, the founder of Mouthshut.com.

About four-five months before Mishi’s call, I was in Mumbai, sitting in Faisal’s office when I got a legal notice from cybercrime cell. I used to go to Mumbai three-four times a year, because my grandmother lived there, and it gave me an opportunity to meet friends in the content industry in Mumbai. I used to spend about a month each year in the city, and ever so often, landed up at Faisal’s office for a chat (or at Toto’s with Sidharth Rao from Webchutney). I showed the legal notice to Faisal, and he laughed it away, asking me to ignore it. Mouthshut is a consumer reviews website were anyone could post a review of a service. “Don’t worry. I get 500 such notices a year.” The notice I got, bizarrely enough, was for taking down a small little article on Airtel live streaming prayers from religious shrines. I ignored the notice, but Faisal’s explanation about the kind of takedown notices that he received made him the perfect case. That’s how MouthShut got involved in the Shreya Singhal judgment. In court, however, while I reported on proceedings, in the breaks I would speak with lawyers and senior counsel, at times helping them understand what platforms were facing.

At one point in time, one Senior Counsel implored that I speak with another, who he felt was messing up the case. Our ideal situation was a DMCA kind of situation: if a creator pushes back against the take-down of content by a complainant, the platform should put the content back, as long as the creator takes the liability for the content. The Senior Counsel who wanted to change the plea in the middle of the case was upsetting the others: wanted to prevent a put-back mechanism. I tried explaining the fallacy of this approach, and how it impacts free speech, but she argued that in case of revenge porn, no one should be allowed to put content back up. My argument that no one will want to claim liability for revenge porn fell on diffident ears.

We won the case eventually, in terms of 66A (criminalisation of speech that was “annoying” etc) declared unconstitutional, 79A (takedown notices) watered down, but Section 69A, which allows the government to block content secretly and without adequate independent oversight, still remains. I remember stepping out after Justice Nariman read out the judgment in a packed Court 1 of the Supreme court and being quite upset, before Raman and Apar convinced me that it was a victory: they were pragmatic and were focused on the win with 66A and 79A. I was upset about losing 69A.

I reached towards the middle of the panel before mine, entering the tiny and always-too-cramped Lecture Hall II in the basement. I was interested only in talking about Net Neutrality, while everyone else debated the Shreya Singhal judgment. Anja was on the panel with me, and I spoke last. I vaguely remember interrupting her a few times during the panel (and apologising to her for it afterwards), but I used the time I had to make the case for those in the room to do something about TRAI’s consultation paper. I didn’t tell them about AIB, not wanting to let the cat out of the bag in a public forum. “After this panel, I’m going back to working on the campaign tonight. I have an explanatory note to prepare, which will be helped by those of you with expertise in research. Apar is here. Please meet us after this session.”

Before coming for the discussion at IIC, I had gone to the Defence Colony market to meet Chakshu Roy, the head of outreach at PRS Legislative. Chakshu was one of the most helpful people in the policy space, with deep understanding of how policy gets made, and he was the person I went to for advice, as much as I tried to help PRS in their own work of selecting LAMP Fellows (legislative assistants for MPS), and preparing policy briefs. I don’t recall what Chakshu said, but after meeting him, I called up Sunil Abraham, then the head of the Centre for Internet and Society in Bangalore. CIS was the mothership: every tech policy researcher in India worth their salt at the time had done some work with CIS, and Sunil had been instrumental in my learning about tech policy issues, by discussing things with me, occasionally inviting me for CIS events, and generally encouraging my reporting on issues. He’s the kind of guy who takes a big-tent approach to things, wanting to involve everyone in everything tech policy.

We need researchers on board for the Net Neutrality campaign, I told him, explaining what we were doing, but once again, not mentioning AIB. Sunil declined, saying that we couldn’t possibly pull out researchers from their projects to focus on something that they haven’t been commissioned to do. I asked him to check if they can spare even a week — after all, the deadline for the Net Neutrality consultation was just 20 days away, on April 24th. “I can’t do that…I can’t pull people out of projects that they’ve been commissioned to do” Sunil responsed. I was upset, and it was in this mood that I went into the CCG discussion, thinking that even if CIS doesn’t help, there will be others.

Post the panel discussion at CCG, Prasanth Sugatham of SFLC.in came and spoke with me about meeting in a couple of days to discuss in detail what SFLC can do to help with the campaign. Others had a few questions about zero rating and Net Neutrality and offered to help.

I was late in the evening and dark, and as we stepped out of the gates at the IIC Annexe, I remember distinctly telling someone that I’m going home and will start on the explanatory memorandum (FAQs), and could do with some help. “Can we do this later? We’re all going for the party at CIS (at their Delhi office) right now. Come with us?” came the response. I declined: I had work to do.

I knew then that we couldn’t rely on Civil Society organisations. I was pissed off and now combative: we’d do this without them. My thesis was being proven right so far: we had to bypass Civil Society and bring people to the party.