Net Neutrality – Last Chance for EU

Douglas Crawford

Douglas Crawford

June 15, 2016

In October last year the European Parliament voted in new rules aimed at enshrining net neutrality. Due to it rejecting a number of amendments aimed at closing important loopholes, however, critics such as World Wide Web inventor Sir Tim Berners-Lee slammed the legislation,

If adopted as currently written, these rules will threaten innovation, free speech and privacy, and compromise Europe’s ability to lead in the digital economy. To underpin continued economic growth and social progress, Europeans deserve the same strong net neutrality protections similar to those recently secured in the United States.

The four main areas of concern were:

Fast lanes – the rules insist on treating all internet traffic as equal. Except for “specialised services”, which can be prioritized. The term “specialised services” refers to an indeterminate group of new services which could not possibly function over the “regular‘” internet, such as driverless cars, remote surgery, or when dealing with terrorist attacks.

The wording, however, is much too vague, and opens up the potential for some companies to pay for “fast lane” priority access to the internet. This means that Europeans may have to pay more to access certain websites, and that smaller businesses that cannot afford to pay for priority access will be unable to compete with those who can.

Zero rating – this is the practice of ISPs exempting some internet services from their regular data caps. It creates the same harm as introducing fast lanes. Facebook’s highly controversial project is a good example of zero rating in practice.

“Classes” of traffic – the rules allow ISPs to group services into “classes” that can be prioritized or discriminated against (even in the absence of network congestion.) Critics are particularly concerned that this will discourage the use of encryption, as ISPs can group all encrypted traffic (such as VPN traffic) into one “class”. This can then put into a “slow lane”.

“Impending” congestion management – allows ISPs to slow down traffic on a highly subjective basis when they think (or claim) that congestion is “impending” (rather than just when actually is congested.)

Despite these concerns, the rules were adopted and came into force on 30 April. Thanks to the loose way in which many of them are written, however, ISPs have been uncertain about how to interpret them.

The Body of European Regulators of Electronic Communications (BEREC), a group comprising the EU’s 28 telecoms regulators, has been working to fix this with a new set of guidelines…

A net neutrality fix?

In theory, this is a perfect opportunity to patch the bus-sized holes that threaten net neutrality found in the original rules. And this is, indeed, how it is being widely portrayed by the media, which is characterizing the new guidelines as taking a “tough approach” to net neutrality.

The reality is somewhat different. Formally launched on 6 June (a leaked copy was available earlier), the draft guidelines introduce some improvements. Blatant abuses of net neutrality, such as blocking websites and services, for example, have been ruled out.   As TechCrunch observes, however,

“Yes, the rules block ISPs from engaging in the most heavy-handed of behaviors (like blocking entire websites or services), but that’s not much of an accomplishment, since no ISP was willing to commit PR seppuku in such a fashion anyway.

The devil (as always) is in the detail. And the details are quite worrying.

Fast Lanes

The leaked draft of the guidelines actually did a good job of fixing this problem. It states that “specialized services” can only be offered by ISPs if they have the spare capacity to operate them without impacting their users. Last minute negations, however, have undermined this in the final draft,

BEREC has decided that specialised services may take away bandwidth from the users’ Internet connection, so long they do not affect the quality of other users’ Internet access. Specialised services may now cannibalise one’s own internet access service up to the point where only the minimum speed is not undercut.

This effectively means that ISPs will be able to double sell bandwidth.

Zero rating

Instead of banning zero rating completely (as it should), BEREC has instead adopted a case-by-case approach. This is almost by definition the opposite of “net neutrality”. It means that:

  • Small companies and start-ups will have no chance if their “big-boy” competitors are awarded zero-rating contracts. Although they might find themselves protected by the rules, there is no way to know this until each specific case is assessed by the regulators.
  • As this legal wrangling goes on, ISPs will be free to encourage customers to use their preferred services.
  • The “greyness” of the guidelines, and the uncertainly this will create, can only encourage ISPs to push the rules to their limits. This will, in turn, make the regulator’s task even more difficult.

Classes of traffic

The new guidelines do little to change the problems associated with managing network traffic classes.

  • Most importantly for us here at BestVPN, it allows ISPs to discriminate against encrypted traffic. Needless to say, this would be a terrible blow for privacy (and therefore freedom).
  • It makes it easy for an ISP to discriminate against specific websites or services by misclassing them (either deliberately or by accident).
  • Class based traffic discrimination is a lazy way to optimize networks, rather than investing in improving infrastructure.

“Impending” congestion management

Again, the new guidelines fail to address the huge potential for abuse that the impending congestion management rules permit. As has already been amply demonstrated in the US, allowing ISPs to slow down traffic based on projected rather than actual congestion is wide open for abuse. It effectively gives them carte-blanche to discriminate against services that are in competition with them, or that they simply don’t like.

So what now?

BEREC’s draft guidelines are currently going through a consultation phase with “interested parties,” before being officially adopted in August. “Interested parties”, of course, primarily means industry lobby groups. It is therefore vital that we, the public (against whose interests the guidelines currently work), make our voices heard before it is too late!

Net neutrality

The Save the Internet webpage allows you to participate in the debate by telling BEREC your opinion on the new net neutrality guidelines. If you care about net neutrality in Europe, please take a couple minutes out of your time to do this.

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