Net Neutrality: European Law?

Barcelona 11 July 2011

Past, Present, Future

How it happened What s the current status? How to implement net neutrality Some policy issues

My background & relevant work

Five books, 50 academic articles Lawyer: LL.B., LL.M. (LSE), Ph.D. (Essex)
Fellow, Keio U. and GLOCOM (Tokyo) Harvard Internet Policy Research Fellow Cambridge ComputerLab Industrial Fellow Regulatory Director MCI WorldCom Senior Researcher RAND Europe
Advised EU govts and EC on AVMS/broadband/regulation

Articles interoperability/neutrality 1998

Start of end-to-end / bottlenecks/access/carriage

Book launched February 2010

100,000 downloads first 2 months

Canada (McGill) UK (Oxford) Brussels Authors@Google

6 Check against delivery participants only

Net Neutrality Past

Noam 1994: Common Carriage

Regretted & predicted end of common carriage Information services Title I Communications Act 1934 But the debate is much older
De Sola Pool (1983) Technologies of Freedom? Coase (1950) BBC: A Study in Monopoly Kingsbury Commitment (1913) AT&T universal service Gladstone (1844) Railways Act UK

Note: common carriage is FRAND (Fair Reasonable and Non-Discriminatory) treatment

It permits apples and oranges charges!

Common Carriage not new

Began with obligations on inns/boats Determined by public function of networks Continued into modern networks E.g. Railways and telegraphs 1844 Railway Regulation Act
Setting both emergency access ( kill switch ) AND Parliamentary trains

FRAND end-to-end access at set cost

Nothing in regulation is new

1999
Network Neutrality debate began in 1999 Mergers: cable TV and broadband companies AT&T/MediaOne and AOL/TimeWarner Lessig and Lemley FCC submission:
The end of End-to-End

Before Code and Other Laws Fear of closed duopoly model

What s new about net neutrality?

Internet began as an open network Telecoms regulated by common carriage Rights of way/universal service/encryption
Any discrimination amounts to interception

Interoperability Interconnection Privacy Interception

Everyone s doing it?

The problem in a graphic

US Approach: SIX Freedoms

Policy Statement in 2005, Four Freedoms to:
Run a device/application/content, receive services

Notice of Proposed Rule Making (NPRM) 09-191

120 days for comment and then response Extended to consider wireless (given temporary exemption) Rule Making 23 December 2010

Non-discrimination Transparency:
information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections.

Enforcement: to be carried out on case-by-case basis

2009 10 FCC, CRTC and European Commission introduce vague broad principles of non-discrimination
2011-12 devil lies in the detail

We have Net Neutrality lite

October 2009 decisions: Canada, US, Europe Implemented May 2011 (EU), waiting in US Non-discrimination presumption subject to:
national security, law enforcement, public safety
spam, extreme porn, copyright?

AND reasonable network management

What s that?

We will negotiate Net Neutrality heavy

Higher speed lanes: video, voice, medical etc. To allcomers or partners ?

Special and managed services

Special and Managed Services

FCC proposes to exclude Quality of Service Private managed or specialized services
IPTV, VOIP, emergency calls and telemedicine

These use the IP pipe, but a reserved section How big is the private pipe? 10% or 90% Who gets access? Anyone who pays?
Or only those preferred partners to ISPs? Do you only see certain IPTV channels on Videotron? Its making part of the pipe back into cable!

Govt control replaced by private censors?

CRTC Ruling Oct 09

With credible consumer complaint, ISP required to: Describe the ITMP being employed, need and purpose and effect, identify whether ITMP results in discrimination If there is discrimination or preference: 1. demonstrate need and achieve the purpose, and nothing else; 2. ITMP as little discrimination as reasonably possible; 3. demonstrate as little harm as reasonably possible; 4. why network investment or economic approaches alone would not achieve the purpose.

Throttling
For time-sensitive traffic (ie. real-time audio or video) managed services? where throttling creates noticeable degradation,
"amounts to controlling the content and influencing the meaning and purpose of the telecommunications"

Prior approval required for such activities. Non-sensitive traffic: If slowing down de facto amounts to blocking, requires prior approval

CTRC - Disclosure
ISPs to disclose traffic management practices: why they are being introduced who is affected when it will occur what Internet traffic is subject to the traffic management how it will affect user's experience, specifically speed New privacy requirements ISP use of information obtained from deep-packet inspection
"not to use for other purposes personal information collected for the purposes of traffic management and not to disclose such information."

CRTC Enforcement
There is now more guidance and guidelines but it will take more than just this decision. E.g. Bell throttles 4pm-2am peaktime? Cogeco throttles 24/7! New complaint expected CRTC wanted a test case Wireless: this applies to all networks, wireless included Wholesale: where incumbents (Bell) treat independents in the same manner as their retail customers, the same complaintsbased approach applies. Where the approach is more restrictive, prior approval is required.

Michael Geist s Take

While this decision will undoubtedly leave many disappointed, a full prohibition on throttling was never in the cards. Many consumer groups and net neutrality advocates got some of what they asked for
a test that looks a lot like what they recommended, an acknowledgement of the problems with application specific measures, new disclosure requirements, new privacy safeguards, and agreement that throttling can violate the law in certain circumstances.

Net Neutrality Present

Net neutrality law
Chile 2010 Finland 2010 (via universal service) Netherlands 2011

Canada via regulation Norway via co-regulation

DIRECTIVE 2009/136/EC
New Articles 20 and 22, Recital 26: Consumer protection/citizen rights NOT SMP
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0011:0 036:EN:PDF

Requirements to notify customers & NRAs

But will need civil society activists To detect discrimination To notify higher-end consumers of problems

Added to interoperability requirements Article 5 Interconnection Directive

Article 22: Quality of service

1. Member States shall ensure that NRAs are able to require networks and/or services to publish comparable, adequate and up-to-date QoS information 2. NRAs may specify the QoS parameters to be measured content, form and manner of information published, including possible quality certification mechanisms, end-users...comparable reliable user-friendly information 3. In order to prevent the degradation of service, Member States ensure NRAs can set QoS requirements.

NRAs shall provide the Commission

... with a summary of the grounds for action, the envisaged requirements and the proposed course of action. This information shall be available to BEREC The Commission may... make comments or recommendations... NRAs shall take the utmost account of the Commission s comments or recommendations when deciding on the requirements.

Declaration: Neutrality 2009/140EC

The Commission attaches high importance to preserving the open and neutral character of the Internet, taking full account of the will of the co-legislators now to enshrine net neutrality as a policy objective and regulatory principle to be promoted by NRAs
Article 8(4)(g) Framework Directive

strengthening of related transparency requirements

USD Articles 20(1)(b) and 21(3)(c) and (d)

safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks
USD Article 22(3) http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0037:0069 :EN:PDF

Commission will monitor closely?

the implementation of provisions in the Member States, introducing a particular focus on how the net freedoms of European citizens are being safeguarded
in its annual Progress Report to Parliament and Council.

Commission will monitor the impact of market and technological developments on net freedoms reporting to Parliament and Council before end-2010 Was actually April 2011!
on whether additional guidance is required, and

will invoke its existing competition law powers

to deal with anti-competitive practices that may emerge.

European implementation 2011

Do nothing and hope it goes away? EC consultation 2010, rehashed 19 April 2011:
http://ec.europa.eu/information_society/policy/e comm/doc/library/communications_reports/netn eutrality/comm-19042011.pdf

Towards a Japanese fibre future

Europe2020 hostage to ISPs

Broadband Internet a mess

Road to nowhere break the circle of disinvestment and disincentive

The future is not assured

Punctuated equilibrium models

BEREC/ERG given key role by EC

[1] EC is not leading in evidence gathering for BEREC:
"At the end of 2011, I will publish the results, including any instances of blocking or throttling certain types of traffic."

[2] If that produces evidence of widespread infringement - only Madison River Skype blocking? recommend setting EU guidance rules
"more stringent measures...[in] the form of guidance."

[3] "If this proves to be insufficient, I am ready to prohibit the blocking of lawful services or applications. I think that means guidance 2012 - regulatory action
2013, if ever.

Three wise monkeys

We have received no complaints is NOT I have not listened to any complaints . Some regulators are:
Seeing no evil Hearing no evil Speaking no evil.

BEREC analyzing the problem sensibly!

Neutrality Lite
Common carriage Quality of service guarantee Lowest through-put guarantee
Not maximum speed 2Mbps is universal service broadband definition Should be feasible with LTE

No blocking of rival applications/P2P FRAND for premium content

FRAND can mean exclusivity in narrowband networks Al Franken s fears: everything goes premium And video s future is on CDNs is this network?

Managed services FRAND

Fair Reasonable and Non-discriminatory Access means Murdoch, Berlusconi and Disney can t cut exclusive deals to freeze out competitors Universal service must also be considered As well as Public Service must-carry

Europe leads on mobile neutrality

Essential for dongle users Fixed-mobile convergence demands equivalence of regulatory treatment Subject to reasonable traffic management Critical for developing nations 5.3 billion mobile users today 3b people will only access the Internet via mobiles by 2015 - ITU

Mobile broadband maturing

That begins at transparency

Realistic 3G & LTE speeds
Who told DSL Prime about 50Mb/s LTE in 1000 German villages by end-2010?

What s the minimum speed at peak-time? Not up to lab-tested maximum! NOT blocking Skype Building High Definition VOIP fast lanes

Final thoughts: human rights?

Private Internet Censorship

This is shorthand for what ISPs have to do ISPs are not evil they re capitalists Regulators are meant to regulate capitalism Innovation does not take place at ISP layer Do they innovate more than Skype/Google/ Facebook? If so, why do voice phone calls still exist?

ISP as secret policemen?

My suggestion for clarification...

We need rules of the road?

Losing liberty?
ISPs important intermediary limited liability Based on their wise monkeys role Behavioural advertising PHORM Blocking and filtering Throttling on non-transparent basis Removes 2000/31/EC Art.12-14 exemption Freedom of expression vital to democracy

Framework for Solving Problem

Consumer and competition harm

Misleading advertising Deceptive trade practices Stymying competition in downstream market Vertical integration

Freedom of speech and innovation

UGC allowing consumers access for their content P2P future of distribution PSBs distribution of publicly funded and meritorious content

NN Regulation light as possible, but effective:

1. Information regulation
to require service providers to inform consumers

2. Continual monitoring and surveillance 3. Timely evidence-based intervention

to correct harmful and unjustified discrimination where necessary

NN enforced via reporting requirements: 1.incentive for market players, and 2.co-regulation or formal regulation
if insufficiently unanimous cooperation.

Market actors & self-regulatory bodies in

dialogue with regulators and consumers.

This is preferable and lighter-touch: NOT government regulation OR non-regulation.

2011 articles
Three Wise Monkeys www.globalpolicyjournal.com/ Mobile Net Neutrality ejlt.org//article/view/32 More ssrn.com/author=220925 www.essex.ac.uk/law/staff/profil e.aspx?ID=832

Questions? cmars@essex.ac.uk WWW.ESSEX.AC.UK/EXCCEL @EXCCELESSEX