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By Abdulmalik Sugow

Since early this year, the world has been facing a devastating pandemic that has significantly altered how people live and work. Following the World Health Organisation’s (WHO) classification of the coronavirus disease 2019 (COVID-19) as a pandemic, governments around the world have begun to implement mitigative measures such as mandated social distancing, partial lockdowns and travel restrictions. Seeing as there is no cure or vaccine, slowing down the rate of infection appears to be the best bet the world has to weather this storm.

While these measures are crucial, the importance of maintaining productivity so as to prevent future economic woes has also been recognised. A number of schools, universities and employers have altered their programs to accommodate working from home (WFH) schedules. In order to support this, and general social distancing measures, governments such as France and Norway have announced varied lifeline packages ranging from exemptions from utilities payments to welfare stipends to businesses. This type of support explicitly takes for granted certain items as essentials in light of the pandemic: food, water and medical supplies. However, with WFH schedules, access to the internet appears to be rising to the level of a utility worthy of protection/safeguarding. With WFH schedules, it is natural for networks to be overwhelmed with users flooding their internet service providers (ISPs) with requests for data packets ranging from livestreaming to video conferencing leading to a potential gridlock. A gridlock would mean a complete standstill in productivity and would frustrate an already agitated population who are distanced from loved ones, relying on internet connectivity to keep in touch and to meet work deadlines.

On 23 March 2020, the President of Kenya announced the approval of a partnership between Google-and government owned Telcom Kenya  that will see the rollout of Google’s Loon balloons, with a view to expanding 4G coverage around the country. According to the President’s statement, this move is mooted to ensure all Kenyans (even in remote areas), have a stable internet connection during this period. Details of the arrangement remain unclear and raise several questions: would this service only be accessible to Telcom Kenya subscribers? If so, is it not prejudicial for the Kenya Civil Aviation Authority (KCAA) and Communications Authority of Kenya (CA) to approve the roll out of this program to Telekom Kenya only? Would other mobile network operators such as Airtel and Safaricom have equal opportunity to partner with other international companies to roll out similar projects? Will this partnership impact the current market situation in Kenya where Safaricom is a dominant player?

Aside from these questions, the move does not appear to address the issue at hand: a potential gridlock caused by increased traffic. Suggestions in Kenya appear to be focused on increasing access to internet or improving current speeds. For example, telecoms such as Airtel and Safaricom have respectively announced measures to provide free internet access to students learning from home and to double internet speeds of users. Similar ideas are currently in vogue in South Africa with MTN reducing the cost of data. However, the risk of a gridlock is particularly prevalent in sub-Saharan Africa. In a recent Webinar convened by the Diplo Foundation, commentators noted that developing countries are likely to bear the biggest brunt of COVID-19 in relation to their internet infrastructure. Particularly that these countries’ internet exchange points (IXPs) are not well-equipped to handle increased and sustained usage. A gridlock would not only be detrimental to personal usage of the internet, but also governmental efforts to offer services online and communicate information regarding the pandemic. Therefore, it would be prudent for these governments to address it as has been attempted in the European Union (EU).

The EU’s Experience

In relation to the increased traffic, Facebook recently confirmed that this period has seen a considerable surge in usage, surpassing usage during global holidays such as New Years. While some such as David Clark have commented that global networks are capable of handling this surge, the EU appears to be erring on the side of caution. The EU Commission recently warned of a potential gridlock in the wake of current WFH schedules. In response, EU Commissioner Thierry Breton urged streaming platforms to throttle their services, opting for standard definition as opposed to high definition content. In response, Netflix and YouTube both announced that they would comply as a goodwill gesture, reducing the quality of their streaming by a certain percentage (25% in the case of Netflix). Amazon Prime is also considering this throttling.

Talk of throttling and tiering of network access leads one to consider whether the concept of net neutrality would be violated by such recommendations. Net neutrality is the principle of non-discrimination of content by ISPs e.g., paid for content being offered at a higher speed or being allocated more bandwidth would be considered discriminatory. Essentially, ISPs ought to apply ‘application-agnosticism’ in transmitting data; they ought to treat it all equally. The core benefit of net neutrality is open and equal access, which promotes innovation and nurtures freedom of expression. In the context of this pandemic, this open and equal access cannot be understated. For example, the US Federal Communications Commission (FCC) recently extended their public participation process for net neutrality rules, recognizing that the pandemic has recently shown the importance of a free and open internet.

On the face of it, it would appear that the European Commission’s request that streaming services throttle their quality in favor of larger internet access would be discriminatory – after all, the effect would be that other services (such as video calling and voice over internet protocol (VOIP) calls) would be treated preferentially. However, it is prudent to note that the request made was not to ISPs, but directly to content service providers who voluntarily complied. Further, the request was to equally downgrade the quality of content on their platforms; not any specific content, all the content. However, the Body of European Regulators for Electronic Communications (BEREC) also recently permitted telecom operators to take what it termed ‘exceptional traffic management measures’ to prevent a gridlock. It did, however, qualify this permission by stipulating that operators ought not to block, prioritize or slow down traffic and in particular, ought not discriminate against individual content providers – an attempt to ensure net neutrality is upheld. 

Some have criticised the Commission’s direction that content providers throttle their services as unnecessary and lacking in sufficient basis. However, BEREC’s guidelines on net neutrality provide that traffic management to ease congestion, and in compliance with a legal order serve as exceptions to the principle of net neutrality provided equivalent categories of data are treated equally. In this unprecedented time, one may argue that this is a valid limitation of the principle.

Kenya and Net Neutrality

Locally, the Communications Authority (CA) is yet to request ISPs in Kenya, or content service providers throttle any content in favour of reduced congestion. The Kenya Information and Communication Act (KICA), contains provisions mandating non-discrimination and open access on the parts of licensees (essentially net neutrality). However, according to some, net neutrality in Kenya applies only in principle, with practices such as selective slowing down of internet access being the norm. In the coming weeks, Kenya’s internet and telecommunications infrastructure will be tested considerably.

In the wake of a potential bottleneck, certain services are more crucial that others (as noted by the EU’s request to throttle entertainment services). In Kenya, these services would include among other things, news about the pandemic, teleconferencing and access to government services, which have largely moved online. Net neutrality would require that ISPs and telecom service providers treat all data equally – whether crucial in a pandemic or not.

In response to the challenges posed by increased traffic, industry players (as well as regulators) have options that entail partial suspension of net neutrality (in its fullest sense). For example, Tomas Lamanauskas noted that telecoms may zero rate certain services such as access to news about the pandemic (note: zero rating takes place in Kenya despite net neutrality rules) and regulators may permit traffic shaping (as has been requested by the EU). Therefore, while open access to the internet is important at all times, challenging moments such as this pandemic may serve as sufficient justification to prioritize certain traffic contrary to the rules in place. However, the potential for a negative precedent to be set exists, and therefore, CA ought to have in place an emergency plan that details its response from the onset of the emergency, to its conclusion. The International Telecommunication Union (ITU)  issued guidelines for national emergency telecommunication plans that its African arm, ATU reckons may be instrumental to national efforts during this pandemic. Among the recommendations in the guidelines, is the passage of legislation detailing the telecommunication authority’s approach to managing the sector during the crisis – a suggestion that has the potential to safeguard against arbitrary decision making that is not time bound.