By Eben Moglen & Mishi Choudhary

Thanks to the Telecommunications Regulatory Authority of India, a crucial natural experiment in internet policy is about to be conducted between the world’s largest and the world’s richest democracy. The world’s richest democracy, the United States, is too poor to build a 21st century technical infrastructure according to its Federal Communications Commission chair Ajit Pai. It can only do so if it allows US telecoms to engage in anti-competitive discriminatory routing practices in order to pay themselves for building their proprietary networks.

India, according to the TRAI led by RS Sharma, possesses sufficient means to bring all its citizens into a future Digital India without allowing telecommunications operators to abandon their role as common carriers, neutrally carrying everyone’s data without discriminating among network participants, offerings and services. In this tale of two countries, only one of them can be right.

Perhaps a clue to who is right can be found in the fact that President Barack Obama’s FCC agreed strongly with the position taken last week by TRAI. Under Pai’s two immediate predecessors, FCC moved vigorously to declare telecoms and other internet service providers to be common carriers, as they are when they offer legacy telephone services.

Under the “network neutrality” order, providers of internet service (which means parties moving and switching “packets” of data the way a railroad moves and switches rail cars containing freight and passengers) cannot speed up, slow down, or block any packets based on whose computers they are moving between or what is “inside” the digital packets. At a technical level the internet’s rules, or “transmission protocols”, assume that all packets are equal to all intermediaries.

The law of common carriage, which has been consistently applied to transportation business of all kinds under our shared common law since medieval times in England, therefore also subsists well with the internet’s technical realities. All websites are treated equally.

TRAI has recognised, after extended consultation spanning over two years, that the social, educational and development goals India expects to gain from the internet revolution will unequally and unjustly accrue to telecom providers unless network neutrality prevails.

Simultaneously, an FCC led by a former Verizon lawyer, has decided that only rampant inequality in terms of service, manipulated entirely for the benefit of telecom companies themselves and their chosen business partners, will provide sufficient monetary incentive for them to build and operate their railroads.

In both societies, most of the future development and expansion of the network will occur in “mobile”, where the electromagnetic spectrum, which belongs to the people, is the primary building component. What Pai calls the “free market internet” is actually another form of expropriation of the people’s rights for the benefit of the privileged few. TRAI is actually promoting an internet for the free market, and for democratic society, by preventing telecom oligopolists from absorbing the lion’s share of the economic benefit and political power of the internet revolution.

Why is this subject so political? Because in a “non-neutral” Net, the operators of the network have the authority to choose winners and losers in every other sector of the economy. The advertising platforms they prefer or even, in the more extreme situations, the ones they choose not to block control most or all digital advertising placement. The media companies or services they prefer or do not censor have overwhelming power in the shaping of public opinion. The new technology start-ups whose businesses they choose to discriminate against cannot succeed. The political movements or parties they make invisible do not exist.

If the internet works in society as its technical protocols say it works in theory, it is a profound force for economic growth, universal learning, and increased social equality. If the internet is a railroad run by commercial rulers for their own advantage without any legal responsibility for equal treatment of all parties, it is the single most powerful force for economic concentration and social inequality that can be imagined.

The arguments offered by the US FCC for this most-unfree form of ‘free market internet”, have no empirical or historical support. Fortunately, under TRAI’s guidance, India is about to prove them wrong and occupy the leadership position left vacant by the US in promoting an open internet.

Eben Moglen is Founder President and Mishi Choudhary President of the Software Freedom Law Center