The Closing of the Net  "original and valuable"  Times Higher Education

Why does IMCO want to limit  users ? AT&T lobbied for users to be explicitly told by the telcos about  restrictions  or limitations on their Internet service.  The revised Harbour  report has done as they asked for. It risks setting Europe on the slippery slope away from a neutral network towards one which discriminates and ultimately stagnates.


The revised Universal Services directive (Harbour report) in the Telecoms Package Second Reading, released on Friday, wants users to be told about "any limitations imposed by the undertaking, in accordance with national law, on a subscriber's ability to access, use or distribute information or run applications or services". It also specifies that the user should be told "the type of content, application or service concerne,  individual applications or services, or both".

The European Parliament's IMCO  committee which prepared the report has replaced the Council's text which stated that users should be told about the network operator's traffic management policies. The reason for the switch is simply that the users won't understand the language of traffic management polices. In terms of the  meaning of the law, however, it is exactly the same thing.

The changes were lobbied for by AT&T, which put forward 5 amendments dealing with "traffic management policies" and which raised the concern of citizens groups as being a threat to net neutrality. Although  2 out of 5 would normally represent

a failure, in this case, it represents a partial success, which opens up a door to discrimination on the Internet against websites, applications and e-commerce traders. 


The inclusion of the text on limitations reflects  a failure in understanding of the technology now available to the telcos, ISPs and network operators, and the possible consquences of it. 

Traffic management, from the network operators viewpoint, includes the use of deep packet inspection technology to prioritise one sort of traffic over another. It could prioritise access to certain websites, or it could priorities the speed at which the user's connection works for a particular application. It is therefore a discriminatory technology, which allows the operators to leverage their control of the network and mitigates against the open nature of the Internet which is the basic foundation of the  competitive digital economy.

It is also  in contradiction to the European Commissioner for Information society, Viviane Reding, who recently argued for a net neutrality policy in Europe.

It is important to understand that this is not about anti-competitive behaviour against another network. It's not just  about BT behaving anti-competitively against Carphone Warehouse, for example. This is much more specific. It is about the network operator  choosing which parts of the Internet its customers may look at, at its own discretion.

It is rather like saying ‘you may look at anything on the Internet, except the parts I tell you, you can't'. We do not find that acceptable in terms of other communications services, such as the telephone service - imagine being told you could dial any number in the world, except those numbers which the telephone company told you that you couldn't dial. Or imagine you can drive anywhere on the highway, except where the highway manager tells you, you aren't allowed to go. 


In a democratic society, such behaviour on the part of those who control the infrastructure is not acceptable. So we must ask the IMCO committee why they think it is acceptable for the Internet.

AT&T did not win on three other amendments. It's attempt to cut out any possibility for a regulator to act in cases where telcos were abusing their power, (in the proposed reistatement of Recital 14b, combinted with amanements to Recital 16 and Article 22.3) was rejected. - which is positive.


The Harbour report has reinstated the pro-Bono Amendment 166,  which complements Amendment 138 in the Framework directive in safeguarding users fundamental rights. And this is positive. However, it is important to remember that whilst these amendments may have some effect in safeguarding users against some "traffic management" practices they deal with sanctions, rather than clandestine behaviour on the part of the network operator.  A clear expresion of net neutrality is the only way to safeguard against abuse of "traffic management". 


Universal Services directive (Harbour report)

ARticle 20.1 b - second point


- information on any limitations imposed

by the undertaking, in accordance with

national law, on a subscriber's ability to

access, use or distribute information or

run applications or services,


Universal Services directive (Harbour report) 

Article 21.3 (c)

(c) inform subscribers of any change to any

limitations imposed by the undertaking, in

accordance with national law, on a

subscriber's ability to access, use or

distribute information or run applications

or services,


Universal Services directive (Harbour report)

 Recital 22


...(Council Common position text) ...

Given the increasing importance of

electronic communications for consumers

and businesses, users should in any case be

fully informed of any limitations imposed

on the use of electronic communications

services by the service and/or network

provider. Such information should, at the

option of the provider, specify the type of

content, application or service concerned,

individual applications or services, or

both. Depending on the technology used

and the type of limitation, such limitations

may require user consent under Directive








The Copyright Enforcement Enigma tells the story of the 2009 Telecoms Package and how the copyright industries tried to hijack it.

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