Latvian Presidency's New Net Neutrality Proposal Sparks Mostly Criticism
An EU Latvian presidency proposal to break the diplomatic logjam over net neutrality in the draft "connected continent" telecom reform package has drawn mostly critical early reaction from the Internet industry and digital rights activists. The proposal, outlined in a Jan. 20 memo to EU government ministers, will be discussed article-by-article when the Telecom Council Working Party meets Jan. 27, the Presidency said Wednesday. The "harm-based" approach "will be a source of hot debate," said Hogan Lovells (Paris) attorney Winston Maxwell. The text raises doubts about how the system would be implemented, said an Internet industry official. The proposal is "very clear non-neutrality in a text claiming to support net neutrality," said European Digital Rights Executive Director Joe McNamee.
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Despite disagreements among EU members, Latvia intends to try to reach agreement on net neutrality, it said earlier this month (see 1501140004). The new text is based on a Nov. 14 proposal by the former Italian presidency, plus comments from governments, the current presidency said. It follows a "principle-based approach," but homes in on certain issues to ensure legal certainty and enable consistent pan-EU application, the memo said.
In contrast to Italy's approach, Latvia decided to include a definition of "Internet access service." It means a publicly available electronic communications service that provides Internet access and, hence, connectivity between substantially all end points of the Internet, regardless of the network technology and terminal equipment used, the memo said.
The draft said all traffic must be treated equally, Latvia said. Reasonable traffic management measures are allowed, as are blocking and discriminating measures in four "exceptional situations," the Presidency said. Those are to: (1) Implement a legislative or court order. (2) Preserve network integrity and security. (3) Prevent imminent network congestion and mitigate the effects of exceptional network congestion, provided that equivalent kinds of traffic are treated equally. (4) Comply with an explicit request from an end-user, including to prevent transmission of unsolicited communications or install parental control measures.
The presidency also plans to address a proposal to include a ban on positive price discrimination, it said. Some countries back the idea, but others oppose it, "leading the Presidency to conclude that an explicit proposal to ban positive price discrimination cannot gain the necessary support." Latvia wants guidance from governments on whether and how the issue could be resolved in the draft legislation, it said. Whether ISPs should be allowed to block and/or discriminate against certain content on the basis of self-regulatory regimes which pursue recognized public interests, appears to raise legal issues relating to the EU Charter of Fundamental Rights and the e-privacy directive regarding confidentiality of communications, it said. If the legal issues are resolved and governments want such a provision in the connected continent package, the presidency would consider adding it, it said.
The Latvian text would give telecom operators flexibility to offer so-called "managed services" as long as normal Internet access isn't impaired, said Maxwell, who represents telecoms and Internet industry clients. That harm-based approach contrasts with the more prescriptive language on managed services approved by the European Parliament, "and will be a source of hot debate," he said. The presidency hasn't addressed the issue of paid peering, which "continues to occupy a sort of regulatory no-man's land at the fringes of the main net neutrality debate," Maxwell told us. It will be interesting to see how coming FCC net neutrality rules address paid peering, if at all, and whether the agency's stance will influence Europe's debate, he said. A final source of dispute is whether ISPs voluntarily can block certain undesirable content, he said. As a result of the Paris terrorist attacks, government-ordered ISP website-blocking "is likely to become more frequent," but it's unclear whether self-regulatory blocking measures will be tolerated, or whether a government or court order always will be required, he said.
"The Latvian proposal does not solve some important issues; therefore I expect alarmed reaction from libertarians and consumers," said Innocenzo Genna, who represents small telcos and Internet companies. It's weak on preservation of viable, best-effort Internet access, and "ingenuously" relies on freedom of negotiation between ISPs and consumers even though there's no real negotiation to be had, he said. There are no barriers to exclusive deals between dominant ISPs and content providers that could harm Internet openness, he told us.
The proposed text essentially says anything not offered as an Internet access service, while running over the same connection, can be offered at a different quality, McNamee said. If Google, for example, wants to buy a fast lane for YouTube to gain a competitive advantage over the startups in the Internet access service slow lane, it will be able to, he said. The exceptions where ISPs can discriminate cover a lot of ground, he said.
Nonincumbent telcos, which haven't been actively involved in the net neutrality debate, favor the presidency's principle-based perspective, said a European Competitive Telecommunications Association spokeswoman: It's "widely acknowledged, and fully endorsed by ECTA, that effective competition in the provision of internet access is the single most important element to ensure that the internet's unique ecosystem is preserved, while maximising benefits for all."