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

Malcolm Harbour has launched an attack on Swedish Internet-defender MEP Christofer Fjellner. And the users rights directive rapporteur   says that the discussions around Internet  rights amendments 138 and 166 were ‘deeply frustrating'   because they ‘could derail two years' of work'.  Is there an   implication  that he has spent two years on an industry deal, which these amendments could squash?  It does suggest that  his amendments to the directive are not, as he claims, designed for users, but for network operators.

 

*** In this video, taken at an EU conference in Prague on 16th April, Mr Harbour says that "net neutrality and content" are "comparatively minor issues" and that "service limitations...could certainly include restrictions on access to services like voice over IP..customers may wish to buy a service with limitations if it's cheaper".   He is speaking about the Telecoms Package. His comments confirm the view that 'limitations' in his "compromise"  to the Universal Services and Users Rights directive, are indeed about blocking Internet services and "packaging" the Internet.  (Scroll to session 2, Mr Harbour is first speaker)  ***

 

Malcolm Harbour, the European Parliament rapporteur for the Universal Services and Users Rights directive, has launched an attack on Swedish MEP Christofer Fjellner,  in a letter sent to all members of the European Parliament last night. The letter (see below) asks MEPs not to support the users rights amendment 166,  and defends  Mr Harbour's own position (see also below).  Although  in itself  the letter

maintains a certain politeness, the political implications run much deeper.

Christofer Fjellner was one of  the MEPs who led the European Parliament's stand against graduated response/3 strikes measures  in the well-known Bono report last year. Fjellner, at 32,  is young for an MEP - and considerably younger than the 62-year-old Harbour.  Fjellner is an active Internet user and is known for his pro-users stance -  he understands the need to protect the way are able to use it so that the coming generations can benefit. It is appropriate that Fjellner is once again among the MEPs who are standing up for Internet freedom and users rights in the Telecoms Package - a law which in its current draft seeks to permit operators who block access to content and services, at their own discretion, with no regulatory oversight.

 Both Harbour and Fjellner are in the same party group - the EPP. Harbour is trying to put down a young rebel in the group, who is getting in the way of a bad law that he has negotiated with industry and with the Council.

Mr Harbour  is also trying to fend off the amendments  - known as the Citizen's Rights amendments - that have been tabled by the two smaller groups - GUE/NGL (left group) and IND/DEM (independents).  I also believe they may have been tabled by the ALDE (liberal) group and (in part) by the Greens. The Citizens Rights amendments restore the balance of the Telecoms Package towards users, and place a duty on the national regulators to oversee blocking  practices.

In fact, Mr Fjellner did not table Amendment 166, but the GUE/NGL (left group), IND/DEM (Independents),  and the Greens have done so and it is one of the Citizens Rights Amendments .

 Mr Harbour has also publicly vented his frustrations with the discussions surrounding Amendments 138 and 166 -  the two key amendments in the current draft  which offer some protection for users against the blocking and other possible abusive practices by network operators. His comment, issued at the end of a long, and probably tiring day of talks on Tuesday evening, is very telling.   "It has been deeply frustrating to feel this one issue which was not in any way at the centre of what we were doing could derail two years of work," (Reuters ).

 

 ‘This one issue' is a reference to  users rights Amendments 138 and 166 which were being negotiated on in the trialogue meeting .  What I find noteworthy, is that Mr  Harbour is the rapporteur for users rights, and he finds discussion about them ‘frustrating' and does not place them in the centre of what he is doing. The question to ask is 'What is he doing?'

 

I also find noteworthy the comment that these rights  could  ‘derail two years of work'. The Telecoms Package was announced by the European Commission in November 2007, which by my reckoning is less than two years, and the documentary evidence of the European Parliament work on the Telecoms Package goes back just over a year. One therefore must question what Mr Harbour has been doing for two years.  There is an  implication that this law has  been negotiated with industry over that time. We should ask what is the deal?

In the video of the EU Prague conference *  on April 16th, Mr Harbour also indicates a similar frustration: in response to the chairman, a Czech journalist who posed the question that net neutrality, copyright and the 'French guillotine', and restrictions on users access (amendment 138), were important matters of media interest, Mr Harbour's response was: "while the chairman wants to talk about issues like net neutrality and content, it is unfortunate, frankly, that you as a journalist have picked out these. Actually, they are a comparatively minor issues compared to what we were talking about this morning."  He asked how "such a crucial piece of economic reform " had managed to be "hijacked in the way that it has".  He also claimed that his directive has nothing to do with copyright and 3-strikes in it.

I find his comments interesting. Mrs Trautmann was responsible for the economic reform. Mr Harbour was responsible for users rights, and as such, is responsible for net neutrality issues in the way they affect consumers, and it should be centre stage, not 'comparatively minor' for him. One could also ask why the Citizens Rights Amendments (Trautmann Ams 2-9; Harbour 94-102; 104 - 120) propose two deletions from his directive, of two amendments concerning copyright enforcement cooperation mechanisms. 

 

It is clear that the users have not had a say in the drafting  of the directive. During the time that I have been following the Package, users  views have not been invited even though some users groups, such as La Quadrature du Net and Scambio Etico,  have vocally expressed their interest, and two letters have been sent by the Opennet Coalition to MEPs. You can read their most recent letter here .

Here is Malcolm Harbour's comment on Amendment 166 .  

Here is Malcolm Harbour's email about Christofer Fjellner .  

Here is Malcolm Harbour's "compromise" deal with the Council on the replacement of Amendment 166.

To view all amendments and the full deal on the Universal Services and users rights directive, download from the EU website here

(*To view the video, fast forward to session 2, Mr Harbour is the first speaker. He speaks for 10-15 mins.) 

Malcolm Harbour's "Detailed comments on the FJELLNER proposed amendment": critique

 

Original amendment 166  (Fjellner - Svensson) (GUE/NGL, IND/DEM, Greens, ALDE)

compared with Mr Harbour's amendment.

 

The most visible  strategy behind Mr Harbour's amendment is to support the Council - the French and UK goverments which have plans to restrict users' Internet access.

 

Mr Harbour's critique suggests  that his amendment is driven by  commercial law, and the contract between the service provider and the user ( "private-law ").

 

It also implies that a policy decision has been taken regarding ‘national measures'  - a policy that is not in place anywhere else, has not been debated or put through the usual policy processes.

 

The implication of ‘national measures' in this context, is graduated response or filtering/blocking measures to support copyright.

 

In my opinion, it demonstrates a lack of understanding of the Internet and how it operates at both a technical and commercial level. It muddles up the content and the carrier, or, in more technical language, it muddles the network  transmission with the applications (which is a little disappointing after two years' work).

-          The statement "That a provider can choose what service it wants to offer or not offer is a clear statement of fact" is incorrect. An Internet Service Provider should offer connectivity - that is a connection, or a link to the network. Under the mere conduit provision of the e-commerce directive, the service provider only carries the content, but does not know its content. ‘Mere conduit'  also implies that the provide does not choose the content.

-          The "competition" regulated by the Universal Services directive and the Telecoms Framework, is competition between network operators, for the provision of connectivity, which may include connections to the Internet. They compete on the basis of the connectivity services offered, which includes price, technical help and support, hardware, security, and additional bundled services such as web server space,   and advanced email.

-          Mr Harbour's critique says: "No one is suggesting that limitations on users' access should be outlawed. Undertakings can and do shape traffic today, and have always been able to".    This indicates confusion. As I have extensively written, it is necessary to distinguish between  traffic shaping  and  network management.   Traffic shaping  may involve the selective blocking, slowing  or preferential treatment of users traffic -  limitations on access to content -  as Mr Harbour suggests. Network management is about managing the flow of traffic on the network,  which can be done without making any such limitations. Technical experts will agree that whilst they need to sometimes use prioritisation techniques to deal with congested data traffic (network management), they do not mean that users will be told which content they may or may not access (limitations on users' access).     It would seem  therefore, based on  this statement,  that Mr Harbour's amendment is intended to support the ‘limitations' on users access - selective access or blocking of access to content, services and applications on the Internet.

-          And indeed, from the rapporteur for the Users Rights directive, this is a strange comment. Users would like such limitations to be prohibited, or at least available such that they can turn them on and off themselves  and to be properly regulated, which neither Mr Harbour's nor Mrs Trautmann's directive facilitates. Such regulation as was, has been written out, for example , Mr Harbour's agreement with the Council makes  a change to Article  22.3 which reduces the powers of the Commission to act in this situation. 

-          " limitations are always subject to national law". It is not clear to me which areas of national law would deal with these ‘limitations'   - since national telecommunications law implements European law, and there is no provision in European law to deal with the blocking of Internet content by service providers. Unless, of course, this is a reference to copyright law. If so, then here we have evidence that Mr Harbour's amendment is intended to support copyright enforcement measures.

-"the package now requires that you must be told about any limitations and then be free to choose another provider if you do not like them."  The difficulty is that users are not so free to change provider. For active personal users of the Internet, and for anyone who relies on the Internet for their business - freelancers, and businesses with less than 5 employees - changing your email address is like moving house. Email addresses are used as identifiers and notifcation addresses for a multitude of activities, including banking, shopping, utility services, tax,  and personal hobbies.  They are also printed on sales literature, business cards, and used for web promotion activities. Many small businesses do not have the technical expertise to change their email set-up and therefore they have to  get in IT help. There is therefore a direct cost in switching supplier for stationery, promotion and IT support. Mr Harbour's' assumption of choice is not a valid one.  

 

Legal opinions

 I have sought comments from lawyers  and may add to this or amend.   Please check back. 

Here is one informal legal  opinion I have received: 

The criticism on the amendment 166 (Fjellner's version) is  not entirely untrue, but the proposed Harbour strategy is indeed much worse. It leaves it to the  end user decision whether to switch operator when the policies are contrary to his/her will.

 By claiming that ‘Fjellner's' Amendment 166 is insufficiently detailed, it specifies that the only barrier to network operators to shape traffic is that they must give appropriate information.

 So Mr Harbour's  amendment is specific in the wrong way.  As if there would not be information and bargain power asymmetry between operator and user. I am a very sophisticated and picky user, but I still feel obliged sticking to the former incumbent for my Internet access, because I am in a rural area and the others will have problems reaching me, so for me there is actually no choice.

 This is in the same vein as "a competitive market should address the problem" which is rubbish.

 Both amendments alone (138 and 166) are insufficient. We need certain principles and limits.  I am most convinced that the key is to permit full transparency to the regulator. Between the two, I prefer am. 166 in Fjellner's version, insufficiently precise as it might be.

 

A few remarks on the most offending part:

 "That a provider can choose what service it wants to offer or not offer is a clear statement of fact. If it  were not so, everyone would have to offer the same service, and there would be no competition and no consumer choice. "

 

This is rubbish. Internet services are not chosen because the network operator privileges one service over the other, show me a survey that says so. Consumer chooses over: price, bandwidth, stability, service, goodies (such as  free modem/router). Harbour is clearly hiding behind competition where competition is irrelevant.


And the Internet provider offers TCP/IP connectivity services, plus others. Nobody wants to limit the Internet service provider to offer its services over its pipe (this is not unbundling), but it shall do so on a non discriminatory way when it uses its own pipes. The outlet is an essential facility, Internet Providers shall not abuse it for their own good.

 "No one is suggesting that limitations on users' access should be outlawed."

 Well, I guess they are. It should be outlawed exactly on the grounds that  when it is not aimed at addressing special conditions and for limited time, and especially when it is granting privileged access to the provider's services over the others. It should not be banned if

 a. it is a precise and revocable user's demand

b. it is necessary because the bandwidth is *temporarily* insufficient to grant every service its allocation

c. it is put in place on a fair basis

d. national authorities have the power to scrutiny that decision.

 The last part:

 "Comment:  And this also, and particularly, on ensuring access to justice in the event of any restrictive action. This is not covered in Fjellner's amendment at all."

 This is inexplicable. I am unable to draft the same conclusion by comparing the two texts, apart that the second does not mention the Ecommerce directive.

 Here is another commentary emailed to me by a lawyer, regarding Malcolm Harbour's email .

 

Further comments forwarded by Celia Blanco:

 Mr Harbour's comment: " The first part of the amendment deals with the private-law, commercial situation between a provider of a service and the customer. That a provider  can choose what service it wants to offer or not offer is a clear statement  of fact." 

Private law refers to contract law, to what parties agree among them. It is  in contrast to public law that it is law provided by the State. BUT private  law can not go against PUBLIC law. Rights and freedoms are public law and > can not be overriden by private law.

"But the package now requires that you must be told about any limitations > and then be free to choose another provider if you do not like them." 

There is a right to access and send > information, and a limitation/restriction to that right can not be  justified  saying that the user agreed, because to agree it is necessary to have the  ability to choose exercising the right and deciding not to do it. I have a > right to access, I have the ability to do it and I decide not to do it.

Allowing service providers to set limitations is limiting users'  decision-making ability. Those are abusive clauses, since if they (users) want to agree > to the operators terms, they will not get open access to information.


 

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed.

 

 

 

 

 

 

 

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

'accurate and absorbing account of the story of the Telecoms Package' -Journal of International Commercial Law and Technology

'...a must read for those interested in knowing in depth about copyright enforcement and Internet.' -Journal of Intellectual Property Rights.  

Read more  

Ask your library to get it!

Order direct from the publisher.

Go to   Amazon

Copyright Enforcement Enigma launch, March 2012

European Parliament launch for Copyright Enforcement Enigma

Don't miss Iptegrity! Iptegrity.com  RSS/ Bookmark      

Iptegrity.com is the website of Dr Monica Horten, European expert on Internet policy and Visiting Fellow at the London School of Economics & Political Science. She is an independent expert on the Council of Europe Committee on Cross-border flow of Internet traffic and Internet freedom (MSI-INT). She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy. Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

Reads like a legal thriller!


The Copyright Enforcement Enigma - Internet Politics and the ‘Telecoms Package’

by Monica Horten

Available online from Amazon  or (libraries) get it from the publisher direct:

 

 

 

 

Iptegrity.com is made available free of charge for  non-commercial use, Please link-back & attribute Monica Horten. Thank you for respecting this.

Contact  me to use  iptegrity content for commercial purposes