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.

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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.

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