PART 1. NET NEUTRALITY: A FONDAMENTAL PRINCIPLE THAT MUST BEGARANTED
We mentioned in the introduction that the principle of Net neutrality guarantees a strong separationbetween the network (merely in charge of conveying the data) and the peripheral applications (the onlyones capable of managing the data). This implies that there should be no discrimination, based on thesender or receiver’s identity, or the nature of the data, in the information processing.However, this open Internet, which promotes innovation and competition, has to be weighed againstlegal, social, economic and technical considerations. In our market society, where do we strike thebalance between profitability and equality with respect to the Internet? Between the preservation of public order and abusive filtering? In order to answer this, we will see that the neutrality principle hasbeen legally recognized, and then we’ll try to understand the difficulties resulting from this principle.
1A. Net Neutrality: a core principle now universally recognized.
Historically, the questions surrounding Net neutrality arose in the United States in 2000 because of adispute opposing Internet Service Providers (the “ISP”) to cable-based providers regarding theconditions for the access of ISPs to the cables of the plaintiff’s companies. The FederalCommunications Commission (the “FCC”) then outlined the future guidelines based on this neutralityprinciple. In 2005, at the time of the debate regarding the deregulation of access to broadband Internetaccess, the FCC affirmed the right of users to access and use any content, application, and terminalsaccording of their choice, provided they are legal. It also affirmed the necessary competition betweenISPs. However, the “Policy Statements on 4 Internet Freedoms” affirms the freedom for providers toadopt reasonable technical devices to ensure a better traffic management. In 2007, following the lawsuitinvolving Comcast
, a bill on “Net neutrality” was proposed, to no end. In 2009, the FCC launched apublic consultation in order to codify the 2005 “rights” and to complete them with the affirmation of two other principles of Internet governance: non-discrimination and transparency
.Conversely, in Europe, the debate regarding Net Neutrality appeared later, in particular because Europehad implemented a strong regulatory framework regarding local loop unbundling and to supportcompetition between providers. In 2007 and later in 2009 however, the discussions on the newdirectives known as the Telecoms Package
caused heated debates on neutrality, in particular on the
The cable-operator provider Comcast had been sentenced for blocking content using the exchange protocol peer to peer "BitTorrent" unrelated to periods of congestion or size of files and without transparency to its customers. However, thatdecision was overturned by the federal Court of Appeals of Washington DC in April 2010.
In “La neutralité de l'Internet, un atout pour le développement de l'économie numérique” , French Government Report tothe Parliament established under Article 33 of Law No. 2009-1572 dated December 17, 2009 on the fight against the digitaldivide: available on : http://www.laquadrature.net/files/Rapport_Net_Neutralite.pdf
In “Consultation publique sur la Neutralité du Net”, April 9 to May 17, 2010, the Secretariat of State prospectivedevelopment of the digital economy: http://www.telecom.gouv.fr/fonds_documentaire/consultations/10
The Telecoms Package is composed of two directives Better Regulation (amending the Framework Directive, "Access" and“authorization" of 2002), and “rights of citizens"(revising the guidelines" universal service "and" privacy "of 2002) to betransposed into national law by May 15, 2011.