After much anticipation, the EU Council of Ministers released its net neutrality mandate last week. The announcement follows some highly political back-room wrangling, which has resulted in a text – seen by Iptegrity - that creates some very murky waters around Internet fast lanes, filtering and specialised services. The Council now goes into the so-called ‘trilogue’ talks with the European Parliament, and the prospect of a political battle looms.
Last year, the European Parliament gave its support to a positive net neutrality law. This was within a larger proposal entitled Regulation of the European Parliament and of the Council laying down measures concerning the European single market for electronic communications and to achieve a Connected Continent. Much of the original “Connected Continent” proposal was carved out in the European Parliament, and all that is left now is net neutrality and roaming - and it is possible that even roaming may be dropped. The Council’s agreement of last week is effectively a mandate to begin political negotiations with the European Parliament. Its text on net neutrality, seen by Iptegrity, removes much of the good work done by the European Parliament.
At the core of the Council’s proposal is the regulation of traffic management – namely, blocking, filtering and throttling – by network operators. As previously thought, it sets out a series of exceptions for traffic management and it supports the industry position of paid prioritisation, by allowing network operators to charge extra for delivery of favoured content. Network operators will be permitted to agree content deals. It looks as though zero-rating will be permitted, or at least, not forbidden. Hence, this is a position that will ride roughshod over net neutrality, and opens up a can of worms as to exactly what will and will not be allowed.
However, one thing that was previously a bit of a mystery has now been officially clarified. Network-based filtering for parental controls is one of the drivers behind the EU Council’s position. It is also now abundantly clear that ‘complying with a request from an end-user’ relates to parental control filtering. If the user fails to un-tick a box that will be presented to them by the network provider, that would count as ‘requesting’ content filtering. (See EU net neutrality battle: what end-user requests traffic management? )
In other words, the Council proposals have been deliberately manipulated in order to permit unregulated filtering with no safeguards for either users or providers of content. Parental controls are not limited to any specific policy purpose, and are being expanded radipdly by industry and government to cover a broad range of content.
The Brussels rumour mill suggests that the British government was behind these changes, with a little help from the Swedes. It’s understood there was a struggle internally within the Council, with the Germans pulling back from these proposals.
Given that the large British network providers are lobbying the government to oppose this law, it is not a surprise to see the government taking this position. .
The EU Council proposal contains the intriguing proposition that network providers may filter, block of otherwise discriminate in order to ‘prevent pending’ network congestion. Quite what is meant by ‘pending’ is not apparent. This could be a convenient get-out clause.
The deletion of the words ‘specific categories of traffic’ would seem to mean that network providers will be permitted to block, throttle or discriminate against certain types of applications – perhaps as they currently do against peer-to-peer file-sharing traffic or voice-over-IP.
Whilst filtering measures do engage fundamental rights, this Council text ignores the requirement for protection of those rights. The only powers given to regulators are powers related to the technical delivery of the service, and these do not address content blocking.
Specialised services will be permitted, under the Council’s proposals. However, the Council has removed the definition incorporated by the European Parliament, leaving the whole matter with a very murky: ‘services which require a specific level of quality’. It has added that these services should ‘not impair’ Internet access ‘in a material manner’. This is language that I suspect has no legal meaning whatsoever.
Another mysterious phrasing is the notion of ‘substantially all’ as highlighted by Edri.
Network operators must provide “ connectivity to substantially all end points of the internet”. To me, this seems meaningless and seems to mis-understand the way the Internet is constructed. No individual network operator does connect to any end points, since the whole essence of the Internet is to route traffic indirectly with no point to point connections.
This text would be farcical if it was not so serious.
For more analysis of the EU Council of Ministers' net neutrality' mandate see these two postings by EDRi: EU Council proposals on open internet – Episode 2, the clown wars and EU Council proposals on protecting the open internet – Episode 1, the phantom neutrality
For my previous coverage of the net neutrality in the EU, and the Telecoms Regulation (Connected Continent) see all of my postings under the 'Net Neutrality' menu heading. They include Working towards a disconnected Continent - net neutrality gets the EU Council treatment and EU telecoms rules - smokescreen lifts over telco specialised services ).
To understand the political context to the Telecoms regulation (Connected Continent) , see my book The Copyright Enforcement Enigma which discusses the 2009 Telecoms Package and the processing of it in the European Parliament.
If you are more interested in how the lobbying operates in the European Parliament, then you may also like my other book A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms
This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2015, Prioritising filtering and fast lanes – the EU Council reveals ‘net neutrality’ mandate , in Iptegrity.com, 10 March 2015. Commercial users - please contact me.
Tags: net neutrality, EU Telecoms Regulation, EU, FaceBook zero, Council of Ministers, European Commission, zero-rated, data plan, European Parliament, Connected Continent, Telecoms Package, telecoms reform package, open internet.