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

Who gives Vodafone  the right to decide whether or not I need my Blackberry emails on a Saturday afternoon?  At the heart of problem with  the Telecoms Package, is such a very simple question. With a  few simple words, "conditions limiting access to and/or use of applications and services" the Telecoms Package reverses the users right to roam in cyberspace, into an operator's right to set up cyber road-blocks.   A licence to chill.

 I am grateful  to Celia Blanco for additional analysis which contributed to this article. 

 

I find it odd that in Europe in 2009, I am writing an article asking politicians  to protect free speech. But the Telecoms Package  represents a serious attack on our civil liberties, in a most sinister way. Sinister, because it gives the industries concerned the go-ahead to  use powerful equipment and turn it against their users, if they choose to do so.  

 

What is the problem with the Telecoms Package that Internet users don't like?

Basically, it is quite simple. The Telecoms Package legalises something the operators have already started doing - that is, selectively blocking Internet services as and when it suits them.

On Saturday afternoon, 2 May,   Vodafone blocked my Blackberry emails (Oh, yes, they did!). Now,  should Vodafone decide whether or not I need my Blackberry emails on a Saturday afternoon? My heckles go up. No, of course, they shouldn't! I decide!

This is precisely the policy question that  MEPs are being asked  to consider with the Telecoms Package. In a simplistic and personal way, I am using it to illustrate an abstract issue. Should the Parliament legitimise bad

behaviour on the part of the operators, just because the operators ask for it? Or, should it put in place a framework which protects users against such bad behaviour?

 

As this example shows,  the issue for the Telecoms Package and users rights  is  much wider than just copyright, where the users first entered the  debate. It does include copyright, since protection of copyright could be one reason for the bad behaviour - blocking at the request  of content owners - and built into the Telecoms Package via the cooperation with the sectors interested in the promotion of lawful content  in the Universal services directive. But it won't be the only reason.

In fact, we are unlikely to know the reason, because the operators are not going to be asked to explain their bad behaviour,  and the regulator will not have the proper powers to deal with it and administer a punishment - to the operators. On the other hand, the  ‘cooperation mechanism', and references to ‘national measures' open the door for the users to be punished.

Unless Amendments 138 and 166 are passed, the Telecoms Package will pave the way for graduated response and repressive filtering and protocol blocking measures against users.

 The upshot is that the network operators become the gatekeepers to the whole Internet. They can choose what we may or may not look at, who we may talk to, and who and when we can get things. They open and shut the gate for media, for entertainment and for business. The entertainment industries - some sectors - have decided that it suits them, because they have a problem with copyright protection on the Internet. But for the mass of Internet and e-commerce  trade, it could spell financial disaster. And for the democratic media, there is another word - it is called censorship.

 

What is in the Telecoms Package that creates that problem?

Very simply, the Package  reverses two key assumptions in EU law. Firstly, it reverses  the assumption in the existing Telecoms Framework, that users have a right to end-to-end connectivity, and secondly, it   reverses the assumption in the E-commerce directive that operators of Internet services - commonly known as ISPs - are "mere conduits' - that is, they carry our data, but they do not know or care about the content. They do not know why we go there or what we do when we get there.  These two  principles have served to protect users againts abusive bad behaviour by operators.

 

It does this with the following words:

This Directive neither mandates nor prohibits conditions, imposed by

providers of publicly available electronic communications and services,

limiting users' access to and/or use of services and applications, where

allowed under national law and in conformity with Community law, but does

provide for information regarding such conditions. ( Universal Services and Users rights directive, Article 1.2a new)

 

This is the new article , drafted by the UK representation to the Council and  copied into the law  by the rapporteur Malcolm Harbour, and claimed to be a replacement for Article 32(a), Amendment 166. It is supported by similar text inserted in all of the ‘right' places in the Package: user contracts, transparency, interconnection, authorisation, and their associated recitals. (See below ). It is the exact reverse of the original Article 32(a, Amendment 166. 

 

What does "conditions limiting access" mean? The rapporteur, Malcolm Harbour, provided the explanation when speaking at an EU conference hosted by the Czech Presidency on April 16th last month. He spoke of "service limitations ..could certainly include restrictions on access to services like voice over IP" (Skype is implied here). He also said that  "some customers may wish to buy a package with service limitations if it was cheaper" - indicating that the industrial interests that he is talking to, want to package up the Internet somehow.

 

Under English law,  acts are that are not prohibited, are by implication, permitted. In other words, if it doesn't say you can't do it, then it's ok, you can. Now, the UK delegation drew up this Article. Read the text again "neither mandates nor prohibits ... conditions limiting access''.. In other words, it is not forbidden to restrict access to the Internet, or block websites and services, therefore operators may  do it.

 

If operators may block, then the end-to-end principle is gone, and also they lose their "mere conduit" status.

From the users point of view, the problem is obvious. You wouldn't want a telephone service if the operator could choose which numbers you were permitted to dial, and which ones you couldn't call. Likewise, they do not want an Internet service where the operators choose for them  them which websites, services and applications they can use.

 

With those few simple words, "conditions limiting access to and/or use of applications and services" the Telecoms Package reverses the users right to roam in cyberspace, into an operator's right to set up cyber road-blocks. If MEPs wonder why they are getting an email a minute, this is their answer!

 

Why are limitations such a big problem?

My example of  my emails  being delayed on a Saturday afternoon, is about  "traffic managment"  applied to a real situation*.  Traffic management is about more than just keeping the flow of network traffic moving. As I have extensively reported on iptegrity.com, traffic management refers to new systems which telecoms operators are buying. These new systems can enable the operator to choose which content gets priority, to deliver preferred services to users, and to block electronically, at different levels.

 

But there's more. This technology that can look into our data. It is capable of surveillance, and acting covertly. The issue surrounding the UK's Phorm technology is one example. They will be able to do things that are not immediately detectable. Systems being tested could mean that  content is checked mid-transmission for copyright compliance and blocked if the system  deems it to be infringing.  Users will not know that these blocks are applied because they are covert.

 

It enables the network operators to decide which traffic will be allowed on their networks, and which will not. It lets them pick and choose what goes first, and what goes last, what goes fast and what goes slow.  It lets them offer preferred content, and make sure that content is available faster and more conveniently than other content.

 

At the 16th April Presidency conference,  T-Mobile said that the bulk of  traffic in 2010 will be managed by such systems.  Simon Hampton, of Google, commented that managed traffic will become the model, not the exception. So there we have it. We are entering an era when network operators will have the ability to control how, what and when we communicate.

 

Most people will have no idea this is happening. Even if it is in the contract, as the Telecoms Package provides for, most people will not know that the network operators have this kind of equipment, or how it would work. Unlike me, they will have no clue as to why they are not receiving their emails on a Saturday afternoon. But when you do explain it to them, the answer is simple. Exactly as I said, users should decide their priorities! Not the operators!

 

 How does the  Telecoms Package  attack civil liberties?

Freedom of expression is essential for democratic society. In Europe, freedom of expression is a right granted to citizens  by  two Charters. **  In the digital era, or the Information Society (to use the EU jargon), people exercise this right by uploading and downloading digital files and information from the Internet.

 

The right to freedom of expression  can only be guaranteed  if Internet users have access to all websites, services and applications, and if they have the right to upload information as well as download it.  If governments wish to permit private companies to place restrictions on those rights, those  restrictions must be only for limited and specific reasons, and genuinely meet public interest objectives. They must be within the boundaries prescribed by national law, and they  should be proportionate to any  alleged offence. This is where Amendments 138 and 166 are necessary.

 

We have seen above how ‘limitations' are about restricting access to services which users currently have access to and take for granted, in the same way as we take the right to go into a shopping centre for granted. Thus, limitations are an attack on civil liberties. They put the decision for what I may or may not do, into the hands of my network operator. That is also a civil liberties issue. As I said above, ‘I' should decide and no-one else, how  I wish to  receive information. Operators' blocking is bad behaviour, and what the Telecoms Package does in its current form, is legitimise that bad behaviour.

 

Skype is already being blocked by an unrepentant T-Mobile, and some UK operators block access to peer-to-peer sites. The UK operator Virgin Media has said publicly that it is targetting the BBC iPlayer and its chief executive, Neil Berkett,  has publicly said that net neutrality is "a load of bollocks "*** indicating that a disrespect for users rights to access all content on the Internet.  And what happens to the millions of  small websites, who could  be pushed into obscurity by one checkbox of the operator's database?

 

Whatever MEPs views are concerning any of these services, in a democratic society, such matters should be decided   at a societal level.  It should  not be left  it to individual operators to user their discretion.

 

 But won't competition law deal with it?

The Telecoms Package provides for competition law to deal with such blocking situations. This has been written in to the law ever more tightly as the rapporteurs reports progressed towards the final deal with the Council.

 

Competition lawyers advise that this is inadequate to deal with such blocking situations. It refers to Articles 81 and 82 of the EU Treaty, dealing with dominant market power and cartels. In some cases, it may be relevant, but in many cases, where a user finds their right to access something is blocked, competition law may not apply.

 

The protection and safeguards afforded by Amendment 138 and Amendment 166 applied  in cases where the operator is applying the block as form of sanction (as proposed in the UK Rights Agency consultation, for example). But these amendments have been stripped out of the "compromise" at the request of the Council. Amendment 138 exists in a weakened form which lawyers will argue over  for years. Amendment 166 has been deleted.  Its replacement is the text   I have quoted above.

 

The "compromise" proposals have taken away most of the powers from the regulators to deal with such situations. But see, for example,  the weakened powers for the Commission  in  Universal Services and users rights directive Article 22.3. Aside from  a small power for regulators to impose ‘minimum quality standards,' there is little that they can do.     

 

The Telecoms Package "compromise" does not give  the regulator  the power to oversee the operators and to correct their ‘bad behaviour'.  Any such powers have been stripped away as the "compromise" talks with the Council progressed, and this can be seen by an analysis of the progress of certain amendments through the different drafts.

 

The only barrier to operators blocking access to anything they choose on the Internet, is that they tell the user in small print of the contract. This means that we can expect blocking to become the norm, and the only choice that users will have, is a choice of different types of blockages.

 

The Telecoms Package also favours ‘light touch' regulation. But we have seen with the banks,  what happens when large industries with complex technical systems are  left to regulate  themselves.

 

Many people do not have choice. Changing your broadband supplier means you have to tell everyone, including all the websites you are registered with and make changes to your computer. It is a lot of hassle.  For small businesses, there are direct costs involved.

 

Why a licence to chill?

MEPs need to understand that the Internet today is much more than a vast encyclopedia or entertainment system. It is woven into the very fabric of life for many people.  People have been encouraged by a variety of policy decisions in the past 15 years to do more online.

 

They regard it as theirs. It is the shop, the bank, the job centre  - and, something that MEPs probably don't realise - it is the news-sheet, the political pamphlet  and the cafe or bar-room chat.

 

And there is perhaps a dichotomy between the policy makers who think that users rights are in the commercial contract for access to the system, and the users who believe their rights lie in what they do when they are connected.

 

By authorising blocking practices, the Telecoms Package puts Europe on a path to a closed series of Internets. It puts at risk  innovation, trade, and  any policy goals to encourage cross-border trade. It puts at risk the EU's Information Society goals.  And,  it stands to  chill democratic speech. Political commentary can be blocked directly by a block on a website,  or indirectly by blocking the linked sites. Under the Telecoms Package, an operator only needs to say that you cannot access certain sites and it is legal. When an operator favours or disfavours a political view, who will stop it putting the blocks on?   It will not be a quick change but  a long, slow strangulation. 

 

NOTE: MEPS who want to protect  fundamental freedoms on the Internet  may vote on Wednesday for the Citizens Rights Amendments tabled by Eva-Britt Svensson (GUE/NGL) together with IND/DEM and (in part) by the Greens.  The Citizens Rights Amendments safguard users against sanctions and covert blocking by re-tabling Amendments 138 and 166. They support users rights and provide for  proper regulation of bad behaviour by network operators. 

They do not preclude protection of copyright, but reinstate a balance between users rights and the rights of others. 

Here are the Citizen's Rights Amendments Note that this document does not have the correct numbering of the amendments  for the vote - please check the La Quadrature voting list for correct numbers. Here is the Defence of the Citizens' Rights Amendments - an explanation of why they are needed  

The Citizens Rights Amendments (Part III) in the document, address the limitations language, and seek to remove it. Amendments affected include USD Article 20.1, 21.3, New Article 1.2a, Access Artice 9.1, Auth. Annexe 1, pt19. 

 

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 correct attribution for this article is: Monica Horten (2009)The Telecoms Package -  a licence to chill, http://www.iptegrity.com 4 May 2009. 

 

 

 

 

 

 

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.  

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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

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

by Monica Horten

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