Almost two decades ago, as the co-author of the first book on e-governance that was released by the then President of India, Dr. Abdul Kalam, one of the key things I had noted in that book was the need to change many established processes and regulations, as e-governance changed the context of the existing regulations.
Let me take an example to explain the issue. As per The Land Records Maintenance Act of 1895, all land records are public information, which may be accessed by the public, on payment of a certain fee. This implies that one can find out who is the owner of a particular property, by simply depositing certain fees at the land records office. Such a regulation was necessary as one needed to know who is the real owner of a piece of property, in case one wanted to purchase the same. And under this context, the 1895 Land Records Maintenance Act was created.
However, as soon as electronic governance got introduced, the context changed. How did the context change? The context changed as now one could not just query as to who is the owner of a property but could also search for what all properties are owned by a person. How does this search ability change the context? The ability to search for all properties owned by a person allowed criminals of a certain technologically advanced city in India to indulge in crime with a unique modus operandi. They would look for obituaries in the newspapers. They would then curate those obituaries to find if the children of those who had passed away, were living in the USA or any other country, outside of India. Then they would collude with low level data entry operators of the land records system, to find what properties were owned by those who had passed away. Using this information, they transferred the properties to their names by changing the electronic records, making it look like a sale, and even paying the stamp duty. The children of the deceased would find it exceedingly difficult to come to India and fight a protracted civil case, and they would drop the case and lose the property.
As if this was not bad enough, now imagine the same happening with living people, where their entire set of properties can be known to bad elements of the society, by a mere touch of a button, endangering such people and their families.
Thus, the societal context changed dramatically by the advent of technology, now requiring the need to amend the 1895 Land Records Maintenance Act, so that the land records are not public information. But if the land records are not public information, how can a potential buyer buy property, as she will never know for sure as to who is the real owner of that property? Hence, technology has led to a catch 22 situation, where one cannot scrap old laws but adhering to them is also detrimental for the society.
Thus, technology has ripped apart the fabric of regulations that had evolved over thousands of years. It has ripped apart the way we live, the context of our societal norms and the context of our regulatory frameworks. And this is the background in which we observe the current fracas over regulations for the Digital Utilities.
Digital Utilities is a term I had coined to define the public services that are being delivered in a pure digital manner and that has a significant population of the country using it, thereby necessitating those who are not using it, to also aspire to use the same. Some examples of Digital Utilities are instant messaging systems such as WhatsApp, or instant opinion broadcasting systems such as Twitter, or instant publication of personal stories and pictures such as Facebook and Instagram. For many, not being on these platforms is a non-option due to social and business reasons. Just like one cannot be without a telephony system or an electricity system or a gas system, similarly, one cannot be without a Digital Utility.
In one of the television shows that I was on recently, my fellow panelist put in the interesting argument that one cannot call these digital solution providers as digital utilities, as utilities work over scarce resources such as radio waves. This argument is fallacious as landlines, electricity, water etc do not need any scarce resource for delivery to end users. One can have multiple water lines or electricity lines coming to a house. However, due to the capital-intensive nature of the industry, as of now, we find only one electricity distribution company in each area, making it look like a natural monopoly. But even that is set for change, as in many places, one has more than one electricity company, providing electricity.
Thus, these Digital utilities have ripped apart our societal norms and are challenging our regulatory frameworks in an unprecedented manner. Governments across the world are grappling to reign in the Digital Utilities. Be it the issue of how much tax they pay, or who do they pay the taxes, or whose content do they show, or to even classify them as a news agency or an advertising agency and so one and so forth. These are new kinds of entities created, for which we have to go through the torturous process of evolving new regulations that would keep the society away from any harm, while reaping the benefits of these technologies. Just like the land records example that I had taken in the first book on e-governance in this country.
The Digital Utilities operate in countries without having a presence in the country. They descend into a country and make themselves an inalienable part of all narratives, from the national levels to the family levels, but do not have any presence in the country. In the pre-Digital Utilities era, if a Utility service provider was found wanting in their services, or acted against the local regulations, the CEO or MD would be the one prosecuted and sent to prison. However, if there is no CEO or MD of a Digital Utility, living in that country of operation, then who do you hold responsible? The mecca of capitalism, the USA, has perhaps had the largest number of CEO’s being sent to prison, which has ensured that there is a thriving and vibrant rule-based capitalism flourishing in the USA. But if we are not able to bring to book the errant Digital Utilities, how do we ensure that we continue to have a thriving competitive economy?
Therefore, we see countries such as Australia and Nigeria and economic blocs such as the European Union, taking strict actions against the Digital Utilities, ranging from making them pay to actual news content creators, to slapping fines for their monopolistic practices to even outright banning them. Some may have gone too far, and some like India, are taking tentative steps to gently regulate these Digital Utility behemoths.
We sometimes hear the refrain that if you do not like these Digital utilities, you are free to quit them. This is again a fallacious argument. One cannot drop off a utility service, unless there is another option available. Can one cut-off their electricity because they do not like their electricity provider? Or do we cut-off our water supply because we did not like the water supply provider? Do we stop using our mobile phone because we did not like the mobile service operator? No. We cannot stop using a Digital Utility, as it is a critical part of our lives, which is why I call them a utility. Sometimes, like in the case of telecom, we have the luxury of choice, as there are multiple competitive operators who can provide similar services. Unfortunately, in the Digital Utility case, none of the Digital Utilities have an alternative. They are Digital Monopolies. Thus, the citizens of a free country are left to the mercy of the whims and fancies of these Digital Utilities, who can choose to ban them, mark their comments as manipulative, temporarily ban the IT Minister of a democratic nation, even ban the governor of a state, peddle communally sensitive fake videos and refuse to remove them and so on. This is not acceptable.
The context has changed. Digital Utilities are not geeky garage operations by starry eyed teens. Digital Utilities are powerful change agents, which if not regulated properly, can cause very significant damage to our way of life and become threats to law and order and personal safety and dignity. They can drive people to suicide, as we have already seen and they can cause large scale riots, again something that we have witnessed. It is about time that we as a nation get together to adopt and enforce appropriate regulations on the Digital Utilities, so that we can continue to use them without being forced to change our way of life, our privacy or compromise our safety.
(Dr Jaijit Bhattacharya is President of the Centre for Digital Economy Policy Research. Views expressed are personal and do not necessarily reflect those of Outlook Magazine)