The European Commission’s traffic management (net neutrality) consultation suggests regulation of deep packet inspection, but how does that square with its obvious industry bias?
The European Commission wants to know if it should regulate deep packet inspection (DPI) on the public Internet. In a consultation that closed today, labelled as ‘net neutrality’, the Commission asked a range of questions about how ISP use traffic management, a technology which is dependent on deep packet inspection techniques. But how skewed is the questionaire towards the industry position? Is it just a codification of the debate from the Telecoms Package? To whom will the answers be most useful?
The Consultation on specific aspects of transparency, traffic management and switching in an Open Internet is about net neutrality and the open Internet, and the specific issues it is concerned with are traffic management and transparency.
To those iptegrity readers who recall the Telecoms Package, and the events of the Second Reading, the questionnaire will have be like deja vue. It seems to me to be a codification of that debate, skewed towards the line that the Commission wants you to accept. (see: Telecoms Package - a licence to chill )
It discusses the requirement for a minimum quality of service, and goes over the same euphemistic ground from the Telecoms Package about transparency and contracts. It was the Telecoms Package that introduced language into EU law such as 'conditions limiting access to and or use of content, services and applications' (see for example EU Internet restrictions in 9 languages ). The Telecoms Package contained provisions that oblige your ISP to tell you when it is throttling you. That is what the Commission means by ‘transparency’.
However, what’s interesting is an indication that the European Commission is considering some kind of policy measures to address deep packet inspection. This is new, as far as I know.
There is a suggestion that the Commission is concerned that if European ISPs implement wide-scale DPI, it will result in a fragmentation of the Single Market. The European Commission also has privacy concerns about DPI.
If one reads the consultation this way, it could indicate that the European Commission is either split or undecided about the net neutrality issues, in particular regarding DPI. That is possible.
However, the consultation questionaire does give a strong steer that the Commission accepts the industry position. There is a large section on ‘switching’. This section will be meaningless to most users, but the Commission still naively thinks that people have the option to change provider if they find that their Internet connection is being throttled or ‘traffic managed’.
Another indicator of the Commission’s industry bias are questions like this one that asks "What are likely positive and negative effects of certain traffic management practices on the Internet ecosystem, [...] by network operators/ISPs and content providers?" The respondent is asked to explain their view and to "distinguish between different traffic management practices".
The check-box questionaire format that the European Commission has chosen is arguably nonsensical for the highly complex and hotly political issues related to net neutrality, DPI and traffic management. Respondents are asked to provide examples of "new business models" which could be developed on the basis of managed services by (i) Network operators/ISPs:(ii) Content providers (on the basis of agreements with ISPs) "
The respondent is expected to fit their answer within the limited space of the box provided. Yet underlying this apparently simple question, there is a complex issue as to whether the ISPs should be offering content or other services, and whether it is appropriate for content providers to have priority agreements with ISPs and how they should be implement.
The European Commission’s questionnaire is also somewhat ambiguous. For example:
Please provide your views on the following ways/situations where traffic management may be applied by ISPs. Does this mean where is traffic management being applied in your experience, or where you think they could choose to apply it?
The traffic management consultation has been issued by the newly re-named DG Connect - Directorate-General for Communications Networks, Content and Technology. Perhaps it should be DG dis-Connect. We await the Commission’s response with interest.
For the story of the Telecoms Package, the transparency provisions and 'conditions limiting access' in user contracts, see my book The Copyright Enforcement Enigma
This is an original article from Iptegrity.com. If you refer to it or to its content, you should cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, Regulation of deep packet inspection (DPI): is the EU serious? , in www.iptegrity.com, 15 October 2012 . Commercial users - please contact me.