Political deals are being done which remove users rights to distribute Internet content,  impose conditions on Internet access and which could permit broadband providers to limit access to a specified list of websites or a premium paid-for Internet. Net neutrality, and millions of Internet businesses, are  under threat if this goes ahead.

***The next and final  trialogue is Tuesday 24  March ***

Behind closed doors, members of the European Parliament are negotiating away users rights to the Internet, in a bid to come to a quick political agreement on the Telecoms Package. It is happening in the discussions known as trialogues, which bring together the Parliament, the Council and the Commission, to try to agree a resolution on politically sensitive or technically difficult aspects of the Telecoms Package. An agreement  between the three institutions would wrap up the Package in the Second Reading. 

The European Parliament as an elected body,  is supposed  stand up for users rights, but  instead it is agreeing to limit rights  in the way that the Council, led by the UK and France, wants to do. They are trading changes in the revisions to telecoms law, and  users are the ones who are likely to  come off worst.

 Catherine Trautman (rapporteur on the Framework, Access and Authorisation directives) is understood to want  a deal that keeps  ‘lawful content'  in the Package, in return for agreeing to a text from the council on ‘no distortion of competition'. The Council wants a ‘compromise' which removes users right to distribute information. With any of these options, users rights are compromised. Mrs Trautmann's option will impose an onerous obligation on ISPs to monitor content. The ‘lawful content' amendment is referenced by several other articles in more than one directive, so it would really hook in this notion to the heart of what users  can and cannot do.

Malcolm  Harbour (rapporteur on the Universal Services directive)  is believed to be  tackling   the sensitive Internet issues by

Copyright is back in the Telecoms Package second reading as a users rights amendment is hijacked  for copyright enforcement by French MEP Jacques Toubon. Article 32a of the Universal Services directive, (formerly known as Amendment 166) has instead been  turned into an attack on the fundamental   rights of Internet users. 

Copyright enforcement will be permitted in a cynical legal twist on a Telecoms Package  amendment designed to protect users rights. Article 32a of the Universal Services directive (also known as Amendment 166) was designed to protect users' rights against copyright enforcement measures such as graduated response / 3-strikes . These measures impose sanctions such as cutting people off the Internet for downloading music or entertainment, and especially target peer-to-peer users.

The amendment was filed unsurprisingly by the French MEP Jacques Toubon , who has been working for 12 months to get copyright enforcement into the Telecoms Package - the cooperation amendment (Article 33.3) of the Universal Services directive is also his amendment, drafted by the French collecting  society SACD. A different version of Toubon's amendment has also been proposed by the Council as a"compromise". 

MEP Toubon's amendment twists the wording of this amendment, such that it appears to mean that users Internet access  can be

And the British bulldog persists with the ‘wikipedia amendments' to bring in a conditional Internet.

The French government is said to be ‘fighting like a lion' to kill the controversial Amendment 138 for user safeguards  in the Telecoms Package. It is taking its fight to heart of the Council of Ministers, where the British government is also pushing its position for an Internet where access and use is conditional on the operator's terms. 

Amendment 138  is the controversial amendment  which seeks to protect users rights in respect of 3-strikes sanctions, and would make it difficult for France to legally bring in its Hadopi law. It has effectively stopped the EU from bringing in a 3-strikes policy, which had been on the cards for a separate ‘Creative Content Online' initiative.

There is also a strange perversion of the other user safeguard amendment  - known as amendment 166 (article 32a)  in the Universal Services directive  - that has appeared in one of the latest documents.

The UK government's ‘wikipedia amendments'  have been tabled by several MEPs in the Universal

Limitations and restrictions are not the same thing. They pave the way for a kind of Internet on demand.

This article was sent in to iptegrity.com by Celia Blanco, a law graduate from Spain, and I'm publishing it because I think it provides some  helpful insights into  the Telecoms Package. It analyses the Telecoms Package, European Parliament revisions of 23 February (revised Harbour and Trautmann reports). In particular, it considers the differentiation between limitations and restrictons, and a possible interpretation of ‘internet on demand', which is not so far fetched when one understands what traffic management systems are capable of.

by Celia Blanco 

Limitations=management policies.  Limitations affect  everyone from the beginning, a priori, and Providers must/may inform about them. (This is transparency.) Providers may offer to users different packages  with different Internets (if you pay a certain amount, you can access the kind of content, services and applications, you choose what you want)

Reading  Amendment 45 of the Trautmann report (Art. 8 a. 2002/21) together  with Recital 22 (Amendment 5 of the Harbour report), there is an interpretation that users should be able to choose in a competitive market with transparent offerings.It does not say that each provider has to ensure that end users are able to access and distribute any content and to use any applications and services of their choice. Instead, it can be interpreted such that  it is the market which has to provide transparent offerings to allow the users to choose what content services and applicationsthey want to access, andtherefore, providers have to inform users of the limitations in the services they offer.

Restrictions= sanctions. A fortiori. Restrictions affect a specific individual and can only be imposed  following a

Is net neutrality incompatible with traffic management policies? Here is another briefing paper on the Telecoms Package, written by myself and  a colleague, Benedetta Brevini. In the paper, we suggest that a stronger role should be given to national and European regulators to monitor and oversee discriminatory practices by network operators, in order to protect citizens' interests.

We believe that it is essential for policy-makers to guarantee the neutrality of the network, as the Information Society Commissioner, Viviane Reding, has said.

We consider how ‘bandwidth management' is different from ‘traffic management', and how in the new telecoms environment of ‘traffic management', the problem facing the regulators will entail disputes arising between content providers and network operators, which gives them a different set of regulatory issues from the traditional, purely network-based,  issues. 

Finally,  we consider how the Federal Communications Commission (FCC) was able to address such an  issue when it arose in the US, compared with the powers that EU regulators would have (or not) under the proposals currently in the Telecoms Package. The paper is released here

The UK government wants to cut out users rights to access Internet content, applications and services. Some of the information used to justify the change has been cut and pasted from the Wikipedia.

Amendments to the Telecoms Package circulated in Brussels by the UK government, seek to cross out users' rights to access and distribute Internet content and services. And they want to  replace it with a ‘principle'  that users can be told not only the conditions for access, but also the conditions for the  use  of applications  and services.

The UK government texts have been heavily criticised by  the French campaigning group La Quadrature du Net . It is believed  that they could have been  drawn up by the UK regulator, Ofcom.

The amendments have also appeared in a set of compromise proposals put forward by the Czech Presidency for the Universal Services Directive (Harbour report).

The proposed amendments  cut out completely any users' rights to do with content - whether accessing or distributing -  which would appear to be in  breach of the European Charter of  Fundamental rights, Article 10. The Charter  states that everyone has the right "to receive and impart information and ideas without interference by public authority and regardless of frontiers." In the digital age, the Internet, and the associated applications and services provided by the World Wide Web, is the means by which people exercise that right.

“NRAs shall promote the interests of the citizens of the European Union by inter alia:

(g) applying the principle that end-users should be able there should be transparency of conditions under which services are provided, including information on the conditions of to access to and/or use of and distribute information or run applications and services, and of any traffic management policies of their choice

The  wording  "conditions under which services are provided" and "conditions of use" also allude to the principle of conditional  access which applies to satellite and cable television. In EU law, it is established in the Conditional Access Directive (Directive 98/84/EC) which concerns protection of copyright on satellite and cable television systems. The subscription television model is  alluded to

Telcos are lobbying hard for discriminatory practices in network management to be permited, which threaten the neutrality of the Internet. They are  opposed by citizens groups who are calling on MEPs to close the loopholes in the  Telecoms Package Second Reading.

Liberty Global is the latest telco to throw its hat in the anti-net neutrality ring, with a statement in support of its colleagues at AT&T and Verizon. In a statement to run with its European Parliament seminar today, Liberty Global calls for limitations on regulatory intervention in respect of ‘network management practices'.  The AT&T amendments are about trying to stop European regulators taking the kind of action that the FCC was able to take in the Comcast case, where a netwwork operator was restricting lawful services on the Internet and the FCC told it to stop.

 La Quadrature du Net has issued a dossier which debunks the telco arguments.  The campaigning group has also done a full analysis of the Telecoms Package Second Reading amendments,  and issued a statement in  which it says "there is still a blatant lack for clarification and no concrete guarantee that Telecom operators won't be allowed full control over the Internet". It  calls on MEPS in the  IMCO and ITRE committees responsible for the Second Reading to be vigilant and to "patch" the final  loopholes left open in the Package.

 Liberty Global also   expresses concerns about the cooperation amendment (Universal Services directive, Article 33.3 in the common position). In its statement, it says:

"... the Council Common Position still refers to a cooperation procedure requiring network

Why does IMCO want to limit  users ? AT&T lobbied for users to be explicitly told by the telcos about  restrictions  or limitations on their Internet service.  The revised Harbour  report has done as they asked for. It risks setting Europe on the slippery slope away from a neutral network towards one which discriminates and ultimately stagnates.

The revised Universal Services directive (Harbour report) in the Telecoms Package Second Reading, released on Friday, wants users to be told about "any limitations imposed by the undertaking, in accordance with national law, on a subscriber's ability to access, use or distribute information or run applications or services". It also specifies that the user should be told "the type of content, application or service concerne,  individual applications or services, or both".

The European Parliament's IMCO  committee which prepared the report has replaced the Council's text which stated that users should be told about the network operator's traffic management policies. The reason for the switch is simply that the users won't understand the language of traffic management polices. In terms of the  meaning of the law, however, it is exactly the same thing.

The changes were lobbied for by AT&T, which put forward 5 amendments dealing with "traffic management policies" and which raised the concern of citizens groups as being a threat to net neutrality. Although  2 out of 5 would normally represent

An amendment planted by the French film industry remains firmly at the centre of the Telecoms Package.

I occasionally get asked if copyright is still in the Telecoms Package, and  now that we have the Council's Common Position, and the Second Reading has officially begun, it is worth reviewing the case. Recent legal developments in Member States, such as the Irish music industry  v Eircom case in Ireland, also help to shed light on the issues.

The answer is that copyright is  still there. Some of the provisions have been weakened, and the Package -  as in the Council's Common Position of 9 February -   no longer contains the  onerous "lawful content" provision  that risked making  ISPs liable  for Internet  content. The issue now is how much weaker the provisions are, and what they would or would not permit.  

To be clear, the Telecoms Package copyright amendments do not directly mandate graduated response/3-strikes. The copyright amendments have the effect of putting in place  the  legal foundation stones for 3-strikes. They were intended to get around certain provisions in EU law, which prevent ISPs from accepting liability for content and copyright infringement, and which also prevented them from divulging information about their subscribers to third parties. They are inter-linked, and  it is necessary to interpret them as a linked series rather than individually - as explained in a report by the European Data Protection Supervisor .

The central amendment calling for ISPs to "cooperate" with rights-holders, that was drafted by the French film industry

A Telecoms Package  amendment on the processing of traffic data could lead to large-scale deployment of filtering technology, according to a body which advises the European Union on privacy matters, known as the Article 29 Working Party.

The Article 29 Working Party  issued an opinion on the proposals to amend the e-Privacy directive. In the document, it warns  that  the  amendment on the processing of traffic data for security purposes (ePrivacy directive, Article 6.7 in the Council's Common position and Amendment 181 in the European Parliament text) could "lend  legitimacy to large-scale deployment of  deep packet inspection." Deep packet inspection is the technology that facilities filtering, as well as "traffic management" by network operators.

And it reiterates the opinion of the European Data Protection Supervisor (EDPS) that the amendment is unnecessary. The legal basis for network operators to process traffic data is found in a

AT&T's hidden agenda...AT&T doesn't like a decision by the FCC in America, so it is trying to sneak in changes to European law that will compromise net neutrality. It wants  to prevent European regulators from regulating fairly on peer-to-peer filesharing traffic. It is also trying to sell its global Internet services to the content industries.

The AT&T amendments being promoted around the European Parliament have a hidden American agenda. It concerns a ruling made by the American regulator, the Federal Communications  Commission (FCC) against the network operator Comcast, in August last year. The effect of the  ruling is that ISPs cannot filter peer-to-peer traffic, or indeed, they can't pick on any specific type of traffic and filter or slow it down or ‘restrict' it.

AT&T, and its partner Verizon, wants to prevent a similar regulatory decision happening in Europe. So it is trying to get the law changed.  And it has targeted the Telecoms Package, currently about to enter the Second Reading in the European Parliament.  It wants  changes to Article 22(3) of the Universal Services directive, and associated Recitals, as I have previously reported. The impact of these changes would not only be negative for net neutrality. They would mean that European national  regulators would not have the power to intervene in cases where peer-to-peer traffic is being throttled or restricted, or where any type of content or service was blocked. Nor would the pan-European regulatory body or the Commission have any power.

The FCC ruling was made

The event is timed to coincide with the Second Reading of the Telecoms Package,  where amendments promoted by AT&T, opposed to net neutrality, are under consideration in the Universal Services directive (Harbour report). Google is also reported to be touting amendments around the European Parliament. The Google  amendments are understood to be purveyed under the title of 'net neutrality' but they  may or may not be good for citizens' interests.

The event is organised by the European Newspaper Publishers Association (ENPA) and the European Federation of Magazine Publishers (FAEP), two voices so far unheard in the whole Telecoms  Package debate . The two groups represent national, regional and local newspaper and magazine publishers around Europe. It is curious why they want to get involved now.

ENPA opposed the copyright amendments in the Telecoms Package. On its website, it says: "we would resist 

Net neutrality has to be guaranteed, says EU Commissioner Viviane Reding. It's a 180 degree turn from her graduated-response-supporting position a year ago. And it gives her a new challenge to deal with the AT&T  amendments to the Telecoms Package  which attack net neutrality.

"I believe that we are at the start of a new phase of internet driven innovation and growth...We will only reap the full  benefits if we  safeguard the openness of the Intenet...take advantage of the  win-win of open interfaces...net neutrality has to be guaranteed ..." 

Not the words of a technology entrepreneur, as you might expect,  but Information Society Commissioner Viviane Reding, speaking last week at a conference on the future of the Internet . She called for investment in the Internet infrastructure and commitment to openness, in order  to

European civil liberties groups are calling on MEPs to reject a Telecoms Package amendment that, if passed in its present form, could permit network operators to collect and mine users Internet and email data.

European Digital Rights (EDRi), France's La Quadrature du Net, and Germany's AK Vorrat have jointly  issued a  warning  about  Amendment 181 in the e-Privacy directive of the e-Privacy directive. They say it is so badly worded that it potentially allows operators to collect an unlimited amount of personal data related to our communications usage, including email traffic records and web surfing data. Vast 'pools' of data could be  stored for an unlimited amount of time, which goes much further than  the existing EU law in the Data Retention directive. 

The problems lie in both the European Parliament and the Council versions of the amendment.  The European Parliament version provides some protection for end-users but also could be interpreted as allowing the data to be passed to a third party.

 The Council version removes all data protection requirements whilst limiting the scope to security purposes.

 They are joined by the European

Report from Brussels

Pushed by an AT&T lobbyist, some revised amendments to the Telecoms Package could usher in filtering, and have rocketed net neutrality from a non-issue to one of the hottest under discussion in the Telecoms Package trialogues.

A raft of new “compromise” amendments to the Telecoms Package is circulating in Brussels. On the surface, they state that telcos, network operators and ISPs should be able to “address unjustified degradation of service”, and impose “reasonable usage restrictions, and price differentiation” without any regulatory interference. The sub-agenda however, is that these legal texts could enable network operators to shrug off accountability for filtering, throttling and degrading user traffic, including access to content. With obvious implications for the neutrality of the network. 

I first reported on these amendments at the end of last year, when three amendments were proposed – two Recitals addressing ‘network management’ and ‘degradation of service’, and a revision to Article 22(3) of the Universal Services directive. Since then however, a new Recital and an amendment to Article 21 have been added, which re-introduce the concept that users should be informed of ‘restrictions on access to content and services’. This language shifts the onus back from the network operator to the user. It had been deleted by the Council.

The main driving force behind the amendments is the Brussels lobbyist for the American telecoms operator AT&T, who has been actively promoting his amendments inside and outside of the European Parliament. I have spoken to at least half a dozen people on this topic, who have all given me the same name. It’s also my understanding however, that the issue of net neutrality is the subject of a document being circulated by other lobbyists working for

Report from Brussels

An amendment to the Telecoms Package which supports the principles established in the Bono report is back on the European Parliament agenda for the Telecoms Package trialogues.

This is Article 32(a) of the Universal Services Directive ( Amendment 166 to the Harbour report). The amendment sets out the principle that any sanctions on end users, and notably any restrictions on users rights to access content, applications and services, must be proportionate to the alleged ‘offence’ (full text below). It is an important amendment, given that elsewhere in the Universal Services Directive, there is language concerning restrictions on users access to content. And as long as the 'co-operation' amendment (Article 33 (2a) or Harbour report Amendment112) remains in, which would establish in the law a process for telecoms regulators to oversee joint programmes for copyright enforcement between ISPs and rights-holders,  it is an essential safeguard for users' rights.

It is my understanding that this amendment is now being considered among a list of political issues related to the Harbour report. The Parliament is to look at

Report from Brussels 

The controversial Amendment 138 has set EU officials searching for the rule books as they attempt to work out how to re-introduce it in the Second Reading of the Telecoms Package.

Amendment 138 states that sanctions cannot be applied against Internet users without a prior judicial ruling. It positions itself against measures such as graduated response or 3 strikes, where it is proposed to sanction users without going to court.

It was dropped without explanation by the Council of Ministers in their political agreement last November, but it is understood that MEP Guy Bono plans to re-introduce it. The rules for MEPs to table amendments in Second Reading are different from the first reading, where 40 signatures are required. It seems that even

 Report from European Council Meeting (Telecommunications Council) 27 November 2008

Political agreement in the Council on Telecoms Package. Key  compromises on functional separation, pan-European regulator and regulatory remedies. UK, Sweden and Netherlands abstain from agreement. Amendment 138 rejected. No explanation available.

 The European Council has confirmed that it wants to drop the controversial amendment 138 from theTelecoms Package. In doing so, it sets itself clearly in the opposite corner to both the Commission and the Parliament and it puts a stumbling block in the way of the negotiations which will now take place between the three institutions. It also positions the Council as unfriendly to citizens rights, in spite of its somewhat hypocritical attempts to rename the Universal Services Directive as 'the citizen's rights directive'. 

 Amendment 138 states that no restrictions may be put on users rights to access content on the Internet without a court order. In one sense, it re-affirms the existing legal situation. In another sense, it puts a barrier in the way of the French government and its plans for graduated response / 3-strikes (the Creation and Internet law).  

The French Industry Minister, Luc Chatel, was unable to

Is there a difference if 3-strikes measures are optional at European level, rather than obligatory? This is a key question for policy-makers as they prepare for  the European Council vote on Thursday. 

*You can watch the European  Council  debate the Telecoms Package  on a webcast via this link  from 9.15 am (8.15 am  UK) on Thursday 27th November*

 The Council of Ministers has today published its compromise proposals for the Universal Services Directive and they  are now available online (this was the main part of   the Harbour report in the European Parliament) . The main change is that the requirement for telecoms regulators to enforce "co-operation" agreements between ISPs and rights holders, has been made optional, not compulsory:  the word 'shall' which conveyed the obligation,  has been replaced by 'may' (in Article 33 (2a) which was confirmed recently by MEP Ruth Hieronymi as 'anchoring' Olivennes-style proposals into the Package). Thus, it would appear to  imply a kind of optional 3-strikes or indeed, a voluntary agreement between the two industries for the purposes of enforcing copyright. 

Another significant change is the removal of the requirement for ISPs to

I have written another  briefing paper on the Telecoms package. Called Packaging up copyright enforcement - how the Telecoms Package slots in the framework for a European policy to restrict Internet content, the paper discusses the mechanisms  that could be used to bring in a policy of copyright enforcement and how the Telecoms Package lays the foundation for it. The paper argues that it is a clear intent of the legislation that national regulators will be asked to promote a policy where ISPs have to