EU: One Step Away from A Strong Net Neutrality Law

The EU voted for a new Net Neutrality law (for fixed and mobile services), that should end traffic blocking (here) or discrimination. However, there are some exceptions, including the ability to provide high-quality services. This is not final yet, and the law has to be approved by the leaders of the EU countries.

"Internet access providers would be barred from blocking or slowing down selected services for economic or other reasons by the latest draft EU “telecoms package” legislation voted by Parliament on Thursday .. MEPs want clear rules to prevent internet access providers from promoting some services at the expense of others".

See also:

• EU: Traffic Management, Pay for QoS - are all fine! - here
• EU Tells Telcos to Wake-up! - here.

"Internet access providers would still be able to offer specialized services of higher quality, such as video on demand and business-critical data-intensive “cloud” (data storage) applications, so long as these services are not supplied to "the detriment of the availability or quality of internet access services" offered to other companies or service suppliers

MEPs shortened the European Commission's list of “exceptional” cases in which internet access providers could still be entitled to block or slow down the internet. MEPs say these practices should be permitted only to enforce a court order, preserve network security or prevent temporary network congestion. If such "traffic management measures" are used, they must be "transparent, non-discriminatory and proportionate" and "not be maintained longer than necessary", they add.

MEPs underline that internet access should be provided in accordance with the principle of "net neutrality", which means that all internet traffic is treated equally, without discrimination, restriction or interference, independently of its sender, recipient, type, content, device, service or application.
See "Ensure open access for internet service suppliers and ban roaming fees, say MEPs" - here.

BEREC: “What regulators can do in order to promote net neutrality?”

The Body of European Regulators for Electronic Communications (BEREC) found in May that "traffic management and differentiation practices are capable of being used for questionable purposes" (here).

Concluding that this is a bad thing, and Network Neutrality may help avoid such behavior, BEREC published several suggestions to regulators on how to promote Net Neutrality.

BEREC announced it has "..adopted an Overview and a Summary of BEREC’s approach to net neutrality at the BEREC Plenary on 6 December 2012 .. The Overview provides a concise description of three years of BEREC’s activities in the field of net neutrality. It summarizes briefly how the Internet works and presents findings related to retail and wholesale relationships and observations in the context of net neutrality. Furthermore, the paper presents what regulators can do in order to promote net neutrality. More specific explanations are available in the “Summary of BEREC positions on net neutrality”.

The "Overview of BEREC’s approach to net neutrality" (here) lists "What regulators can do in order to promote net neutrality": 

• Strengthening competition - Regulators have powers under the regulatory framework to promote effective competition through the imposition of price, access and non-discrimination obligations on operators .. Transparency (of terms and conditions) is necessary in order for competition to effectively discipline market players in this way – end-users must have access to information about available offers on the market, so that they can identify unrestricted Internet access service offers (providing access to all applications available on the Internet) as well as any limitations that apply to restricted offers ..
   
• Monitoring - . .. regulators continuously monitor the quality of Internet offers on the market, as well as the evolution of the market as a whole.
   
• Using additional powers, e.g. on quality of service, when necessary .. These requirements could take the form of minimum statistical QoS levels (where an Internet access service is being degraded) and/or a prohibition on blocking and throttling (where a particular application is being throttled or blocked). In either case, BEREC believes this power should be used with caution, and typically only where other regulatory tools are unable to make a sufficient impact quickly enough.

See "BEREC has adopted two summaries and the updated reports on net neutrality" - here.

What does the EU Want to Know about Traffic Management?

  

The European Commission launched a public consultation " .. seeking answers to questions on transparency, switching and certain aspects of internet traffic management, with a view to its commitment to preserve the open and neutral character of the Internet. These questions have emerged as key issues in the "net neutrality" debate that has taken place in Europe over the past years, including the recent findings of the Body of European Regulators of European Communications (BEREC)".

See "BEREC: 'traffic management and differentiation practices are capable of being used for questionable purposes'" - here.

Neelie Kroes (pictured; see "It's not OK for Skype and other such services to be throttled" - here), European Commission VP said: "Today there is a lack of effective consumer choice when it comes to internet offers. I will use this consultation to help prepare recommendations that will generate more real choices and end the net neutrality waiting game in Europe. Input from this consultation will help turn BEREC's findings into practical recommendations".

Some examples for questions that are part of the consultation (here):  

• Please explain briefly which traffic management techniques are usually applied by network operators or ISPs and how they are technically implemented
   
• If possible, please provide a  definition and  examples of  genuine congestion management measures, i.e. measures which are  necessary to  avoid or  tackle  network congestion, as  opposed to measures which may be called congestion management  but actually pursue other purpose
   
• Please give examples of "new business models" which could be developed on the basis of managed services (see "European ISPs Suggest New Internet Business Models"- here) 
   
• It appears that the implementation of traffic management measures requires ISPs to analyse certain information  about individual data packets, for instance by deep packet inspection (DPI) techniques. 

• Please explain which type of information needs to be read by ISPs to implement the different traffic management measures. In which layer can this information normally be found?
   
• Are there any privacy risks arising from the use of DPI for traffic management purposes, and, if so, what are the implications for transparency and consumer protection?
   
• Some ISPs currently apply 'fair use policies', which give them wide discretion to apply restrictions on traffic generated by users whose usage they consider excessive. Do you consider that, in case of contractual restrictions of data consumption, quantified data allowances (e.g. monthly caps of x MB or GB) are more transparent for consumers than discretionary fair use clauses?

See "Digital Agenda: Commission opens public consultation on preservation of the open internet (net neutrality)" - here and here.

BEREC: "traffic management and differentiation practices are capable of being used for questionable purposes"

     

The Body of European Regulators for Electronic Communications (BEREC) published ".. the results of an investigation into traffic management and other practices resulting in restrictions to the open Internet in Europe". (for background see "The EU Takes its time with Net Neutrality: It is Important, but Let's Monitor and Study First" - here and "BEREC: Blocking/throttling P2P and VoIP with DPI is Frequently Done in Europe" - here).

"The total number of operators considered within the scope of the exercise is 381 - 266 fixed and 115 mobile operators .. The customer base of the respondent operators covers a total of about 140 million fixed broadband subscribers and 200 million mobile active Internet subscribers".

The traffic restrictions reported by the operators are divided into 4 categories:

1. P2P/VoIP and Other contents/applications (e.g. file sharing, FTP, etc.)
    
2. Measures reported by operators as allowing a more efficient protection and management of networks - Congestion management and Security and integrity 
    
3. Measures put in place by operators in order to implement specific business models, either concerning the bundling of specialized services with Internet access, or with respect to data volume pricing - Specialised services in fixed networks and Data caps
    
4. Restriction that is not at the operators’ initiative, but is required by public authorities (measures upon legal order)

BEREC concludes:

• Competition is expected to discipline operators, and ensure the best offers for consumers, but this critically relies on effective transparency and the ability of endusers to easily switch service providers.
    
• Both NRAs and end users should be able to monitor the performance of the Internet access service, and of the applications used via that Internet access service.
   
• Where competition and transparency are inadequate or insufficient to address concerns, existing regulatory tools (including quality of service requirements) should enable NRAs to address net neutrality related concerns for the time being (though not all of these tools have been fully tested yet). NRAs are ready to act without hesitation  if necessary.

See the press release "BEREC publishes net neutrality findings and new guidance for consultation"- here and report - here.

BEREC: Blocking/throttling P2P and VoIP with DPI is Frequently Done in Europe

  

Back in December, the EU TRANSPORT, TELECOMMUNICATIONS and ENERGY Council published a document summarizing its current work and consolations on Net Neutrality (see "The EU Takes its time with Net Neutrality: It is Important, but Let's Monitor and Study First" - here).

  

One of the action items was to "Monitor, jointly with BEREC, the issue of traffic management to allow for a smooth flow of proportional, necessary and transparent traffic management practices that do not affect net neutrality" and "Continue studying, with the support of BEREC's investigations, any aspects of net neutrality where significant and persistent problems are substantiated, including charges and conditions that mobile operators impose on VoIP users as well as throttling of content, applications and services".

Now, BEREC, the Body of European Regulators for Electronic Communications, announced that it ".. has submitted to the Commission its preliminary findings on reported Internet traffic management practices, following a Europe-wide data collection exercise launched jointly with the Commission in December 2011".

"The most frequently reported traffic management practices are the blocking and/or throttling of peer to-peer (P2P) traffic, on both fixed and mobile networks, and the blocking of Voice over IP (VoIP) traffic (mostly on mobile networks, usually based on specific contract terms). When blocking/throttling is implemented in the network, it is typically done through deep packet inspection (DPI) .. BEREC also found a wide variety of data caps and “fair use” practices - these were not the main focus of its investigation, since (with some exceptions) in general they do not imply differentiated treatment of traffic"

"About one quarter of respondents provide justifications for certain traffic management practices based on what could be described as “security and integrity” concerns".

See "BEREC preliminary findings on traffic management practices in Europe show that blocking of VoIP and P2P traffic is common, other practices vary widely" - here.

The EU Takes its time with Net Neutrality: It is Important, but Let's Monitor and Study First

The EU's TRANSPORT, TELECOMMUNICATIONS and ENERGY Council published a document summarizing its current work and consolations on Open Internet (Net Neutrality). Not for the first time (here), the EU does not see an urgent need to do something, despite the concerns presented.
   

Among other things, the council says that:

• It recognizes the "The importance of preserving the open character of the Internet" and "The need to encourage investment in new network infrastructures by both the public and private sector"
   
• It notes the "The existence of some concerns, in regards to Discriminatory forms of traffic management and treatment of data, in particular throttling of data and blocking of content, applications and services", "Price transparency and quality of service, in particular the discrepancy between advertised and actual delivery speeds for an Internet connection"  and "Network congestion, mainly as a result of growing data streams"
   
• It underlines the "The importance of ensuring efficient transparency" [here] and "The importance of addressing the issues of discrimination and degradation of service that may arise from certain traffic management practices"
   
• And it invites the Commission to "Monitor, jointly with BEREC, the issue of traffic management to allow for a smooth flow of proportional, necessary and transparent traffic management practices that do not affect net neutrality" and "Continue studying, with the support of BEREC's investigations, any aspects of net neutrality where significant and persistent problems are substantiated, including charges and conditions that mobile operators impose on VoIP users as well as throttling of content, applications and services"

See "Council conclusions on the open internet and net neutrality in Europe" - here.

EU is Getting Closer to Net Neutrality

 

La Quadrature Du Net reports that "The “Industry” Committee of the EU Parliament unanimously adopted a resolution on Net neutrality .. The text adopted today in the ITRE committee vote will now move to be adopted in plenary without the possibility of further amendments, in a vote scheduled for late-November".

• The text is a strong political statement in favour of Net neutrality. It brings a useful definition of Net neutrality and of the network management policies that are detrimental to the users' freedoms and to competition. 

• The resolution asks the Commission to move past its failed “wait-and-see” [see "EU Net Neutrality Study Recommends: "Do not impose any further NN obligations" - here] approach by assessing the need for further regulation on Net neutrality, within 6 months of EU telecoms regulators (BEREC) releasing their study [see "Yet Another ISP Transparency Guide" - here] on the discriminatory practices of ISPs.

See "Net Neutrality Resolution Adopted in EU Parliament" - here.

EU: ISPs' Traffic Inspection "raises serious issues relating to the protection of users’ privacy'

    

A document by Peter Hustinx (pictured), European Data Protection Supervisor, presents its opinion on "on net neutrality, traffic management and the protection of privacy and personal data".

Some of the conclusions are: 

• ISPs' increasing reliance on monitoring and inspection techniques impinges upon the neutrality of the Internet and the confidentiality of communications This raises serious issues relating to the protection of users’ privacy and personal data.
    
• The EDPS considers that there is a need for national authorities and BEREC (see "Yet Another ISP Transparency Guide" - here) to monitor the market situation. This monitoring should result in a clear picture describing whether the market is evolving towards massive, real-time inspection of communications and issues related to complying with the legal framework
   
• Depending on these findings, additional legislative measures may be necessary. In such a case, the Commission should put forward policy measures aiming at strengthening the legal framework and ensuring legal certainty. New measures should clarify the practical consequences of the net neutrality principle, as this has already been done in some Member States, and ensure that users can exercise a real choice, notably by forcing ISPs to offer non-monitored connections

See "Opinion of the European Data Protection Supervisor" - here and press release - here.

Yet Another ISP Transparency Guide

  
It seems that many regulators see that network neutrality is being focused on ISP transparency, rather than the full package of "all traffic being treated equally".

After UK's BCAP recommended ISPs how to to advertize services (here), BEREC (the Body of European Regulators for Electronic Communications) published a draft document on ISP transparency.

See "BEREC Guidelines on Net Neutrality and Transparency: Best practices and recommended approaches" - here.

• "We stress that transparency regarding net neutrality is a key pre-condition of the end users’ ability to choose the quality of the service that best fits their needs and also should reduce the assymetry of information existing between providers and end users, fostering proactive behaviour by Internet Service Providers (ISPs)”
    

• First of all, we believe that a fully effective transparency policy should fulfill all of the following characteristics: accessibility, understandabilty, meaningfulness, comparability and accuracy .. BEREC has identified two approaches - a direct and an indirect one. With a direct approach, ISPs make information transparent to end users directly, while in an indirect approach, third parties (such as comparison websites) play a crucial role in making the information understandable for end users. A direct approach is legally required by the Framework. An indirect approach, on the other hand, is not compulsory, but it complements a direct approach
    
• BEREC finds that providers should clearly explain any general limitations, as well as any consequences of exceeding such limits. In this regards, explicit conditions such as data caps and download limits seem preferable to fair use policies Information on traffic management techniques, applied either on types of traffic or content, should be provided to end users along with information on about how these techniques may affect the end users’ access service.
   
• Application agnostic and application specific traffic management techniques should be clearly distinguished