Net Neutrality - Ending Network discrimination in Europe (or how ISP monopolies are eating our options online)

I am reading articles on technology and public policy because one day I want to do a PhD on this stuff. To make sure I read the articles, I'm summarising what I remember here and filing it under 'professional stuff' in my labels. The parenthetical statements are usually mine while the rest is where I try to accurately represent what I took from the article.

Title: Net Neutrality - Ending Network discrimination in Europe (or how ISP monopolies are eating our options online)

Authors: Giusy Cannella (@GiusyCannella), Raegan MacDonald (@ShmaeganM) & Jochai Ben-Avie of Access (@accessnow)

Access (AccessNow.org) describes itself as "an international NGO that defends and extends the digital rights of users at risk around the world."

This is a report on how the European Union is failing net neutrality and how this could be fixed. 

The shining example of best practice in the protection of net neutrality is apparently the Dutch net neutrality law - a summit to which all other EU Member States as well as the European Institutions themselves should aspire, despite the somewhat dire performance on net neutrality by the (Dutch) European Union Commissioner overseeing the 'Digital Agenda', Ms. Neelie Kroes. 

What is net neutrality? 

The father of the World Wide Web, Sir Tim Berners-Lee, defines net neutrality in the prologue: "every customer should be able to access every service and every service should be accessible for every customer". 

Sir Berners-Lee perhaps leans heavily on the 'customer' approach given this is a paper directed at Eurocrats and the Brussels Bubble, which tend to view anything and everything through the lens of the 'four freedoms' upon which the EU is based - all four of which plug the idea of Europe as a single market that fosters European business and innovation. 

(The single market is, as yet, still a dream as the EU remains a patchwork of diverse and disparate countries, each with their own approach to 'customers' and 'services' despite the European Institutions best...well, despite the efforts of the European Institutions.)

The prologue's approach establishes the audience for the paper. 

What role does net neutrality play in the success of Internet - and all its dependents - at large? 

Given in June 2012, studies suggested that almost 1/3 of the word's population had access to Internet, why is net neutrality important? 

Well, the Internet, according to the paper, is successful for 3 reasons...er principles, all of which depend on the Internet remaining neutral/equitable towards diverse sorts of web traffic:

• end to end principle - all points in the network (the Internet) should be able to connect to all other points in the network
• best effort principle - all providers of the Internet should make their best effort to deliver traffic from point to point as expeditiously (love this word, defined online as 'Acting or done with speed and efficiency') as possible
• innovation without permission principle - everyone should be able to innovate without permission from anyone or anything (wonder how copyright fits in with this principle? Next paper to read, I suppose...)

What role does net neutrality play in the success of the Internet - and all its dependents - in Europe?

More than 65% of Europeans have Internet access, so the need for net neutrality is even more pressing here for all the principles cited above plus:

• ethical reasons 
• single market reasons (of course)
• legal reasons (essentially EU privacy concerns)

The ethical reasons: 

Internet access is a basic human right, according to the United Nations. After all, it reinforces freedom of expression and association as well as provides users with access to culture and education. The World Bank notes a direct correlation between the uptake of high-speed Internet connection and the economic and social development of all levels of society. 

Single market reasons:

If the European Union is to truly be a single, open market and a level playing field, with jobs and innovation for all people at all levels in a fair competitive market, then net neutrality needs to insure that the evil national (among others, telecomm) monopolies don't screw the faster, more efficient, more competitive new entrants to a particular market by prioritising who and what users can easily access online.

Legal reasons

The EU is a stickler for privacy. When employing technology that is adverse to net neutrality, Internet Service Providers (ISPs - telecomm companies, essentially) sometimes use Deep Packet Inspection (DPI), which is also used by many online surveillance systems to copy and keep private communication (e.g. emails and online messages via Facebook, chat services and Voice over Internet Protocol stuff (VoIP services like Skype). 

This is kind of illegal - I say kind of, because there seem to be still some kinks in both understanding and implementing relevant EU legislation and agreements, notably the opinion of the European Data Protection Supervisor, Articles 7 and 8 in the Charter of Fundamental Rights of the European Union, and Article 8 in the European Convention for Protecting Human Rights and Fundamental Freedoms (ECHR). 

If it is so great, why is net neutrality not happening? 

Er...monopolies, the great enemy of fair competition, equal playing fields, entrepreneurs with great ideas, market efficiencies, and kittens everywhere. 

(Seriously, though, monopolies are usually bad news. They tend to go from providing a service at a great price to stopping anyone else from providing said service at any price.)

ISPs are usually national monopolies, or close to it. Certain ISPs want to keep the over-large share of the market that they have safe from competition, and these ISPs, according to a 2012 joint report from the European Commission and the Body of European Regulators for Electronic Communication (BEREC), are not treating equally generated Internet traffic in an equal (er, neutral) way. 

Hiding behind false 'quality of service' claims, ISP servers do the following (for a wide variety of reasons...or not):

• block applications and services, e.g. Deutsche Telecom (DT) blocks or restricts some VoIP services like Skype and Viber (because if users use a VoIP DT doesn't own or make a profit from, DT could lose money)
• slow down or throttle the speed of the Internet, e.g. ISPs force users to use the ISP's own platforms and services or face 1990s-era browsing time (because if users can get great services from others faster than or just as quickly as the monopoly's services, the monopoly could lose money)
• block websites for reasons related to competition, (no, I, the monopoly, will not share my captive customers / I'd lose money), reasons related to public relations (this website shared a picture of WHAT? Take the whole site down! / I could lose money if people are offended), reasons related to social concerns (people might find this offensive, so let's just not, ok? I, the monopoly, could lose money), and reasons related to political issues (could this get us in trouble with a politician/group we are lobbying or present a point of view not helpful to our business interests? / I, the monopoly, could lose money..and/or influence, which could result in me losing money) 
• e.g. UK's Orange Telecom blocked La Quadrature du Net, a French digital rights activist site, on pre-paid mobile accounts. 
• provide preferential treatment of services or platforms, e.g. Orang France gives Deezer, a popular music service, preferential treatment over other similar services (Orange gets more money from Deezer than from like services, so they push Deezer on their users because if not, they could lose money to competitors)

In short, when offering Internet, ISPs tend to favour large, established companies (such as themselves and their subsidiaries) instead of letting 'every customer' access 'every service' and 'every service' access 'every customer' in equal (neutral) measure. 

Many ISPs tend to practice 'net discrimination' in fact, in which they 'intentionally and arbitrarily apply restrictions to users' access to an open and neutral Internet.' 

Why are ISPs infringing on net neutrality?

(Um...were you reading? Because they could lose money. Or is that too simple?)

The report notes that the ISPs argue that with the ever-present 'data explosion', with the increasing demands various types of data make on existing bandwidth, and with the new infrastructure costs that come from keeping up with demand, well, ISPs need to guarantee a quality of service. Such a quality guarantee can only happens when ISPs provide preferential treatment of services or platforms, block websites, slow down Internet speed in certain cases, and/or block applications and services in others. 

BEREC, among others, states this is simply not true - in fact, the report suggest that this claim is demonstrably false. Moreover, as stated above, some ISPs are, in doing all listed above, potentially violating a range of national and EU-level privacy laws. 

So really, 

1.    ISPs have no reason, external to their own interests, to infringe on net neutrality (this report hints). 

2.    But, given their own interests, ISPs have good reason to infringe upon net neutrality.  

3.    And unless lawmakers enact some pretty clear legislation, ISPs will probably not respect net neutrality. 

How can we get ISPs to practice net neutrality?

Clear and - for violators - painful legislation. For everyone in Europe. (Ha! The big telecoms would get the same treatment that the poor random teens using Napster did back in the 1990s...)

There have been initial attempts at this sort of legislation, but these attempts are small and harmless or sometimes even wildly unhelpful (leaving large loopholes for ISPs to shove their existing practices through.)

The UK has issued a voluntary 'Open Internet Code or Practice' that ISPs can join (not so many have joined just yet) but the Code has a few loopholes (aside from the fact that it is completely voluntary.) 

Norway has created the Norwegian Post and Telecommunication Authority (NTPA), a mix of public and private interests that have agreed to implement certain net neutrality ideas - but NTPA has no teeth, so violation of any rules agreed to is painless for the violator. 

The EU, particularly the Dutch Commissioner for the Digital Agenda Neelie Kroes, has suggested legislation that espouses in theory net neutrality but then goes on to allow ISPs to enter into commercial agreements with content providers to prioritise Internet traffic, permit priority to be granted, and allow data caps to be imposed (a good way to slow down/throttle Internet speed).

So what is the solution?

Better legislation.

Here is the 6-point proposal from Access (word-for-word):

1.    The Internet must be kept open and neutral. Reachability between all endpoints connected to the Internet, without any form of restriction, must be maintained. 

2.    All data traffic should be treated on an equitable basis no matter its sender, recipient, type, or content. All forms of discriminatory traffic management, such as blocking or throttling should be prohibited. 

3.    ISPs shall refrain from any interference with Internet users’ freedom to access content and use applications of their choice from any device of their choice, unless such interference is strictly necessary and proportionate to: 

o   i. As a transient and exceptional measure, mitigate the consequences of congestion, while treating the same kinds of traffic in the same manner; 

o   ii. Safeguard the integrity and safety of the network, the service, or a terminal device of the user (e.g. blocking viruses and DDOS-traffic); 

o   iii. Block the delivery of unsolicited commercial messages (e.g. spam), but only if the subscriber has given prior consent; 

o   iv. Respect specific legal obligations or 

o   v. Comply with an explicit request from the subscriber, provided the subscriber may revoke the request without any increase in subscription fee at any time.

4.    Use of packet inspection software (including storage and re-use of associated data) should be reviewed by national data protection regulators to assess compliance with the EU’s data protection and fundamental rights framework. By default, these types of inspection techniques should only examine header information. 

5.    Complete information on reasonable traffic management practices and justifications must be accessible and foreseeable to the public. Network operators should be transparent and accountable to any changes in practices. 

6.    Non-neutral treatment of traffic for 'voluntary' law enforcement purposes must be prohibited unless there is a legal basis and predictable procedure in the country where the restriction is being implemented. Failure to require this would be a breach of Article 52 of the Charter of Fundamental Rights and articles 8 and 10 of the European Convention on Human Rights.