Leaked EU Laws and Police Raid on ISPs Raise Net Neutrality Concerns

The European Commission’s recent promise to “guarantee” Net Neutrality by ensuring that broadband ISPs and mobile operators give citizens access to the full and open internet, “without any blocking or throttling of competing services” (here), has been called into question after a draft of the new regulation was leaked.

In fairness the Net Neutrality principle of treating all internet traffic as equal has always been at odds with the fundamental way in which the internet works (i.e. at some point all traffic will need to be adjusted or managed). Some general Traffic Management, which is usually necessary to help keep connections running smoothly and deliverable at an affordable level, is generally accepted.

But the area where this can become more of a problem is when Internet service providers (ISP) or Mobile Broadband operators deliberately block legal services like Skype (VoIP). At the other extreme some providers have threatened to throttle traffic to certain services simply because they’ve chosen to favour a rival solution via a commercial agreement (i.e. preferential treatment).

But Europe’s recent promise to impose a new EU Safeguard that would protect consumers from such abuse has been called into question after the Draft Regulation for a Telecoms Single Market (PDF) found its way onto the internet via the EDRI (Digital Civil Rights in Europe).

As expected, those hoping for new legislation to help safeguard Net Neutrality in Europe will be displeased to learn that the new text doesn’t “guarantee” a truly open internet. Indeed its protection measures are, much as previously reported in May 2013 (here), broadly skin deep. The term “net neutrality” doesn’t even appear in the draft, although “open internet” does. But the new proposals aren’t entirely without merit.

Extract from the Draft Regulation

“BEREC’s [EU telecoms regulators] report on traffic management practices published in May 2012 documented that a significant number of end-users are affected by traffic management practices which block or slow down specific applications. These tendencies require clear rules at the Union level to maintain the open Internet and to avoid fragmentation of the single market through individual Member States’ measures.

In an open Internet, providers of electronic communications to the public should, within contractually agreed limits on data volumes and speeds, not block, slow down or degrade specific services or service classes except for a limited number of reasons, namely an explicit legal order, threats to the network integrity and security, protection against unsolicited communications and exceptional network congestion.

Volume-based tariffs are compatible with an open Internet as they allow end-users to choose the tariff corresponding to their normal data consumption while enabling providers of electronic communications to the public to better adapt the network capacities to the expected data volumes. It is essential that end-users are fully informed before agreeing to any data volume, speed or other general quality characteristics, that they can continuously monitor their consumption and easily acquire extensions to the available data volumes if desired.”

The new text is arguably a lot more prescriptive than previous ones and the fact that such wording would be included inside any new regulation is potentially significant. But what all of this ultimately boils down to is the placing of a general commitment upon ISPs to improve the transparency of their service speeds and any relevant restrictions on internet access, which is intended to help consumers make a more informed choice about which ISP they choose.

ISPs will thus be discouraged from imposing unwarranted blocking and or traffic restrictions. But so long as they’re transparent with customers about imposing such things then they’ll probably be safe from enforcement. It’s worth noting that many providers in the United Kingdom already do this and so the new text is unlikely to have much of an impact on this side of the channel.

In other words, regulatory intervention will continue to take a backseat and the same text also leaves plenty of room for ISPs to seek new commercial and content agreements, which some might view as contradictory. In fairness though some services, such as IPTV (e.g. YouView), merely use the internet to carry their content and as a result there does need to be some allowance for commercial flexibility, otherwise the TV content model might run into trouble.

Meanwhile it’s interesting to note an article on the BBC, which reports that EC competition officials have raided the offices of three European ISPs (Deutsche Telekom, Orange [EE] and Telefonica [O2 UK]) after USA based net traffic delivery firm Cogent lodged a competition complaint, which claims that the ISPs were “holding back net traffic from Cogent so their own data arrived more quickly“. Apparently the ISP “throttling” made Cogent’s services “appear to be slower” than those being run by the EU ISPs.

Adrian Kennard, Director of UK ISP Andrews & Arnold (AAISP), commented:

“If the ISPs have a contract with Cogent, as many do, that may impose conditions. But ISPs do not have contract with Cogent if they do not want to. If Cogent do this sort of ****, then why would any ISP risk dealing with them.

It is almost worth calling for all ISPs to block all traffic via Cogent. It would be easy to do, and if it is legal, it would put them out of business. I am not calling for such, but surely actions by Cogent that are causing some major ISPs problems, “raids” even, could lead to that sort of action from the ISP community.”

Unfortunately the BBC’s original article is sparse on detail and as a result it’s difficult to draw any conclusions before more is known. Never the less it does show that the issue of Net Neutrality and the debate that surrounds it can have far reaching consequences and will be a complicated beast to tackle.

The official version of Europe’s new telecoms policy is due to be published in September 2013 and it’s hoped that a final agreement will then be ready for Easter 2014. As usual the text will probably go through some changes before then.