Countries around the world are moving to regulate internet services and mobile applications, from communications apps like Skype or WhatsApp to services like Netflix, Uber, and AirBnB. Even though regulation can be necessary to protect users’ rights – like it is to ensure data protection – some regulatory proposals risk our right to freedom of expression and can also thwart economic, social, and cultural rights.
Note: this is part one of a series of posts on OTT services. See part two: Internet vs. telecommunication services: differences that matter
Rushed decisions, dangers for users
The internet economy has brought us services that in some cases compete with similar services based in different technologies. An example is the instant messenger WhatsApp – which gives us an alternative communications channel to traditional SMS messaging – or the streaming services from Netflix – which compete, in turn, with traditional TV providers.
These services are changing the economic landscape of the markets they affect, while bringing new regulatory challenges for governments. The issues surrounding these services include taxation, privacy and security obligations, and local content quotas, among others. The key question is: can we address them in a way that doesn’t harm users’ rights or the free and open internet?
The proposals that have been advanced so far fall short of solving this conundrum. That presents risks for users. Last year in Morocco, the local telecommunications authority banned Voice over Internet Protocol (VoIP) services like WhatsApp and Skype because the providers did not have a telecommunications license, leaving millions of people without access to these communications tools. In India, regulators are considering proposals to require that these services be placed under a telecom licensing-style regulatory framework, a move that could hobble application development and kill nascent industries. In Argentina, a government-issued set of principles for telecommunications regulation could lead to a new obligation to register any internet intermediary. This threatens the survival of citizen media and discussion platforms.
Rights-harming policy proposals are being advanced in part because the debate is so heavily cloaked in technical jargon, it’s hard for the public to penetrate and understand. Starting with this post, we’ll publish a series of posts on “OTT” regulation to help translate the jargon and unpack the arguments, so you understand what OTT services are and why the debate matters for protecting human rights.
What are OTT services?
Technically, any content or services that ride on top of the network layer without the direct control or commercial distribution by network operators are Over-The-Top (OTT) services.The term is typically used to refer to communications services that are provided over the internet, such as instant messaging, calling, and video streaming applications. These are “OTTs” in telecommunications jargon because they run “on top” of the telecommunications networks owned by companies or governments — that is, the phone, cable, or satellite networks that existed before the internet.
But if we take a close look at that definition, it becomes clear that all information exchanged through the internet goes “over the top” of telecommunications infrastructure. It’s not just popular video streaming services like Netflix or big messaging apps like WhatsApp that fit the definition; you could also call a self-hosted video blog or a communications app for gamers an “OTT” service. The term could apply to everything we use to communicate and express ourselves online.
So why are people using this terminology? The answer often lies in regulatory interests. Traditional telecommunications services are heavily regulated because they use limited public goods such as the radio spectrum. The internet does not have the same technological limitations, yet it enables delivery of services with some of the same uses (such as a telephone vs. Skype, or Netflix vs. traditional cable TV). Some regulators don’t take into account these differences, and propose using the old regulatory schemes for new internet services. This essentially force-fits telecom-style rules onto internet content and services, and this can have negative implications for users’ rights.
Why is this important for digital rights?
The internet has shown to be a force for social and political change. It enables millions of people around the world to express themselves and to access information. That information includes educational resources and cultural goods. The internet can also improve our economic well being by enabling the trade of goods and services and the creation of innovative new businesses. All of these activities are expressions of our digital rights.
How we regulate the platform and services we use for communicating and exercising our rights affects our enjoyment of them. If we needed a license from the government for any “communications platform” to function, it would impact our freedom of expression using any personal webpage, forum, or independent media venue that allows comments or the exchange of information. Not every government would be tolerant of all points of view, and requiring a license would give those governments veto power over which messages could be published on the web.
Consider Colombia, which has banned encryption in mobile communications services. That’s terrible for human rights. But imagine if every government were to apply identical rules to every type of communications service. If a government were to apply the rule banning encryption to every service indiscriminately, for instance, it would put our everyday sensitive activities at great risk. Everything we need end-to-end encryption for — not just instant messaging but also online banking transactions, for example — would be dramatically less safe.
Is it necessary to regulate OTT services?
In some cases, yes. Communications services and tools on the internet can introduce real challenges, and governments need to respond to them. For example, sometimes we may need new regulations — or updates to current laws and policies — to ensure the rights and safety of users. For instance, it’s absolutely vital for all communications services to abide by basic data protection principles, and this includes services that run over the internet. Governments must also play a role in ensuring that companies meet their human rights obligations and respect users’ rights to freedom of expression and privacy.
But this regulation needs to be carefully considered so that it doesn’t jeopardize our rights. Moreover, governments should seek solutions that protect the environment that enabled the growth of the internet to begin with, and which preserve its emancipatory potential. That means enshrining Net Neutrality into law (the principles that prevent discrimination in the flow of information on the internet), and supporting other policies that keep the internet open and free, retaining the capacity to foster innovation and economic growth.
To accomplish this, regulation should be thoughtful and innovative, rather than a copy-pasting of the rules created for traditional telecommunications services. Furthermore, the unique features of the internet demand a broad discussion about how it is regulated, with the participation of multiple stakeholders and transparent processes.
In our next post, we will explore the origin of the debate over regulating OTT services and discuss in greater detail a key element of the discussion: the technical and economic differences between the internet and legacy telecommunications services.
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