How to Save Net Neutrality in Europe (Urgent)

On Tuesday,
October 27, the European Parliament will vote on rules intended to
protect network neutrality in the European Union (EU). However, the
proposal about to be adopted fails to deliver real network neutrality to the
EU and is much weaker than current rules in the United
States.

Fortunately, it’s not too late to change course. Members of
Parliament can still secure meaningful network neutrality for
Europe — if they adopt key amendments on Tuesday.

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Unless it adopts amendments, the European Parliament’s net neutrality vote next Tuesday threatens the open Internet in Europe.

The
European Parliament understands that the future of economic growth,
innovation, and free speech in Europe depends on net neutrality — the
principle that has kept the Internet an open and free space since its
inception. However, a compromise proposal up for vote next Tuesday
contains major problems that threaten the open Internet in Europe.
Contrary to some claims, the proposal is weaker than network neutrality
rules in the US. European citizens deserve the same free and open
Internet that Americans can enjoy. The good news is that members of
the European Parliament will introduce amendments that would fix these
problems. For the amendments to be adopted, the majority of the members
(376 of the 571 members) need to vote for the amendments.

The current proposal has major problems.

The
proposal bans Internet service providers (ISPs) from blocking or
slowing down websites, or charging sites extra fees to reach people
faster, i.e. creating “fast lanes” online. This is good — companies that
provide gateways to the Internet shouldn’t interfere with our ability
to access what we want online.
But the current proposal contains four
significant problems that still allow ISPs to engage in bad behavior
that would harm Internet users, businesses, and speakers in Europe.

• Problem #1: The proposal allows ISPs to create fast lanes for companies that pay through the specialized services exception.

•
Problem #2: The proposal generally allows zero-rating and gives
regulators very limited ability to police it, leaving users and
companies without protection against all but the most egregious cases of
favoritism.

•
Problem #3: The proposal allows class-based discrimination, i.e. ISPs
can define classes and speed up or slow down traffic in those classes
even if there is no congestion.

•
Problem #4: The proposal allows ISPs to prevent “impending” congestion.
That makes it easier for them to slow down traffic anytime, not just
during times of actual congestion.

We should ask the Parliament to adopt amendments to ensure an open Internet in Europe.

To
save the open Internet in Europe, members of the European Parliament
need to adopt the amendments. This won’t happen automatically. Here’s
what you can do to help:

Take action:
Ask your representatives in the Parliament to adopt the necessary
amendments. You can find all the necessary information and tools at SavetheInternet.eu and Battleforthenet.com

Spread the word:
Share this post and others on Facebook, Twitter, or anywhere else. Talk
with your friends, colleagues, and family and ask them to take action.
If you are a blogger or journalist, write about what is going on.

HOW THE AMENDMENTS WILL FIX THE PROPOSAL

Let’s look more closely at the major problems with the compromise proposal and how to fix them.

PROBLEM #1:

The proposal allows ISPs to create fast lanes for companies that pay through the specialized services exception.

“Fast Lanes” on the Internet harm innovation, free expression, and democratic discourse in Europe.

ISPs
want the power to charge websites extra fees to reach people faster. If
some websites can pay ISPs to be in the “fast lane,” anyone who can’t
afford the extra fees will be left behind in the slow lane. That means
that it will be harder for Europeans to access websites that can’t
afford to pay extra fees. European start-ups, small businesses,
non-profits, educators, artists, musicians, writers, activists, faith
groups, and NGOs would be at a disadvantage. Europe’s Internet would no
longer be an open space where everyone has an equal chance of reaching
people.

The proposal allows ISPs to create harmful fast lanes online.

The
current proposal generally bans ISPs from creating fast lanes. But it
contains an exception for “specialized services.” That is important,
because it allows applications to emerge that would not be able to
function on the open Internet because they need special treatment that
the open Internet cannot provide.

However,
the exception for specialized services is too broad: In many cases, it
still allows ISPs to offer fast lanes by calling them a specialized
service.

Fast
lanes would crush start-up innovation in Europe and make it harder for
European start-ups to challenge dominant American companies.

Slow
lanes spell disaster for innovation. On the Internet, the costs of
innovation are incredibly low. Entrepreneurs don’t need permission to
innovate or a lot of upfront funding. This benefits European start-ups
that often don’t have access to outside funding.

Allowing
ISPs to offer fast lanes would change that. If established companies
can pay so that their content loads faster or does not count against
users’ monthly bandwidth caps, then those who can’t pay don’t have a
chance to compete. Many of today’s most popular applications — Google,
Facebook, Yahoo, eBay — were developed by innovators with little or no
outside funding. In a world where such innovations are stuck in the slow
lane, they would never have seen the light of day. Today, these
companies can pay for a fast lane, but the next generation of innovators
that will challenge them should be assured the same level playing
field.

Fast lanes would harm all sectors of the economy.

Today,
most companies rely on the Internet to reach their customers. As a
result, fast lanes would harm all sectors of the economy. Large
corporations that pay to be in the fast lane will have higher costs, so
we the customers will be forced to pay higher prices for their products
and services. Small businesses that are unable to pay will be shut out
of the market. Many small businesses in Europe are just starting to take
advantages of the opportunities that the Internet has to offer. They
should have the same opportunity to benefit from an Open Internet as
their counterparts in the United States.

SOLUTION:
The Parliament should adopt amendments that refine the definition of
specialized services to close the specialized services loophole and keep
the Internet an open platform and level playing field.

PROBLEM #2:

The
proposal generally allows zero-rating and gives regulators very limited
ability to police it, leaving users and companies without protection
against all but the most egregious cases.

Zero-rating is harmful discrimination.

Zero-rating
is the practice of not counting certain applications against users’
monthly bandwidth caps. Like fast lanes or other technical
discrimination, zero-rating allows ISPs to discriminate against content
that users want to see. Zero-rated applications are more attractive to
users than applications that are not. That means zero-rating some
content over others has the same discriminatory effect as speeding up
certain applications over others. Like fast lanes, zero-rating threatens
the future of competition, innovation, and free speech in Europe and
around the world.

The proposal does not clearly ban zero-rating.

The
European Commission and the European Parliament disagree whether the
proposal applies to zero-rating. The Commission has stated that
zero-rating is subject to the rules and that the rules allow it. If
zero-rating is subject to the rules, regulators’ ability to regulate
zero-rating is limited: regulators could only reach the most egregious
cases, while everything else would be permitted. Member states would not
be able to adopt additional rules to regulate zero-rating — their hands
would be tied.

However,
members of the Parliament said that they agreed with the Council during
the compromise negotiations that zero-rating would be outside the scope
of the rules.

Zero-rating results in discrimination.

Research
shows that zero-rated applications are far more attractive to users
than those that are not. In a study commissioned by the CTIA, 74% of
users said that they would be more likely to watch videos offered by a
new provider if the content did not count against their monthly
bandwidth caps. When the online magazine Slate experimented with
zero-rating, it told some users that the podcast did not count against
their cap. People who were offered the zero-rated podcast were 61% more
likely to click on the link. Thus, zero-rating has the same impact as
technical discrimination: it gives ISPs power to make certain
applications more attractive than others and pick winners and losers on
the Internet.

Zero-rating distorts competition.

In
the European Union, many ISPs zero-rate their own video applications.
Users on these plans can watch unlimited zero-rated videos, but their
bandwidth caps prevent them from watching more than 2–5 hours of video
content unaffiliated with the ISPs. Similarly, many ISPs in Europe
zero-rate their own cloud-storage applications. Their users can upload
10 gigabytes of traffic to the ISP’s cloud storage for free. But it
costs between $50 and $70 to upload the same amount of data to other
cloud storage sites like Dropbox or Google Drive. These plans make it
effectively impossible for unaffiliated providers to compete with the
ISP’s zero-rated application.

Zero-rating harms users.

When
European ISPs start zero-rating certain applications or content, they
often reduce overall bandwidth caps or increase the price of
unrestricted bandwidth, as the European research firm Rewheel has shown.
This is not surprising: the lower the bandwidth caps, the more
attractive zero-rated applications become, so lower bandwidth caps
motivate rich providers to pay for zero-rating. Thus, zero-rating harms
users (and the providers of applications that are not zero-rated) by
reducing the amount or increasing the costs of bandwidth that users can
use however they like. By contrast, when a Dutch regulator banned
zero-rating, the provider KPN doubled its monthly bandwidth cap for
mobile Internet access from 5 to 10 GB at no additional cost.

Zero-rating harms innovation and free speech.

Start-ups,
small businesses, and low-cost speakers in Europe and elsewhere don’t
have money to pay for fast lanes; they don’t have money to pay for
zero-rating, either. But if some companies can pay to be zero-rated,
those who can’t pay will find it hard to compete. Thus, allowing ISPs to
zero-rate websites or services against a fee creates the same problems
for innovation and free speech as allowing ISPs to charge for fast
lanes.

SOLUTION:
Europeans deserve clarity on this important issue. The parliament
should adopt amendments that make it clear that member states are free
to adopt additional rules to regulate zero-rating. This would bring the
proposal in line with the negotiators’ stated intent and empower
individual member states to address this harmful practice in the future.

PROBLEM #3:

The
proposal allows ISPs to define classes and speed up or slow down
traffic in those classes, even if there is no congestion. This allows
ISPs to distort competition, stifles innovation, harms users, and hurts
providers who encrypt traffic by putting all encrypted traffic in the
slow lane.

The proposal allows ISPs to engage in class-based discrimination.

The
proposal allows class-based discrimination: ISPs can make distinctions
between different kinds of traffic and treat them differently to
optimize overall transmission quality at any time, not just during times
of congestion. The discrimination must be based on the technical
requirements of the applications in question. Thus, ISPs could treat
different kinds of applications differently if they have different
technical requirements. For example, Internet telephony is sensitive to
delay, but e-mail is not, so an ISP could give low delay to Internet
telephony, but not to e-mail.

Whenever
an ISP has the power to speed up certain applications or slow down
others, it might use this power to give certain applications an
advantage over others. The proposal tries to mitigate this danger by
forcing ISPs to consider an application’s technical requirements when
making distinctions among traffic.

However,
this kind of class-based discriminatory network management still allows
ISPs to give some applications an advantage over others, whether
intentionally or inadvertently. It distorts competition, slows all
encrypted traffic, harms individual users, stifles innovation, and
creates high costs of regulation.

Allowing ISPs to treat classes differently gives them power to deliberately distort competition.

When
ISPs are free to define classes, they have a lot of discretion to
discriminate against certain applications. ISPs could use this power to
deliberately distort competition. For example, an ISP could offer low
delay to online gaming to make it more attractive, but it could decide
not to offer low delay to online telephony because that would allow
Internet telephony to better compete with the ISP’s own telephony
offerings. Although both services are sensitive to delay, ISPs could
argue that there are other, technical differences that justify
distinguishing between them.

Class-based traffic management can inadvertently harm applications.

Traffic
management that distinguishes among different kinds of applications
often results in inadvertent discrimination that hurts users, distorts
competition, and makes it harder for providers of affected applications
to innovate. Traffic management technologies that distinguish among
classes of applications often end up harming certain applications, even
if that effect is not intended, because the ISPs or their technology
misclassify certain applications.

For
example, many ISPs in the UK limit the bandwidth available to
peer-to-peer file sharing applications during times of congestion,
arguing that these applications are not sensitive to delay. This creates
huge problems for online gaming. ISPs use deep packet inspection
technology to identify these applications, but the technology doesn’t
work very well: it has a hard time distinguishing between online gaming
and peer-to-peer file sharing, so online games stop working or don’t
work as well as they could. In the end, UK ISPs and gaming providers
established standing committees where ISPs, technology vendors, and
gaming providers worked together to make sure the games would work on
ISPs’ networks in spite of the discriminatory network management.

In
the UK, this class-based traffic management not only creates problems
for online gamers and gaming providers, whose applications perform worse
than other kinds of applications, but it also creates problems for
innovation. If an online gaming provider wants to introduce a new
feature for its game in the UK, it needs to work with the ISPs and their
technology vendors to make sure that the feature won’t be caught up in
the traffic management measures directed at peer-to-peer file sharing.
This is the opposite of innovation without permission.

Similarly,
until 2010, many ISPs in Canada used deep packet inspection technology
to single out all peer-to-peer file sharing applications and limit the
amount of bandwidth available to them from 5pm to midnight. Again, ISPs
assumed that it was alright to target peer-to-peer file sharing, because
it’s not sensitive to delay. But this assumption turned out to be
wrong: there was an application called Vuze that used peer-to-peer file
sharing protocols to stream video in real time. Real-time video is
highly sensitive to delay, so the performance of Vuze suffered in the
evening, when everybody wants to use the Internet.

Thus, the class-based traffic management might result in harmful discrimination by even the best-intentioned ISPs.

Class-based traffic management discriminates against encrypted traffic.

If
traffic is encrypted, then the ISP cannot identify what kind of
application — e-mail, telephony, web browsing — that a user is using, so
it doesn’t know what kind of treatment it needs. In the past, ISPs have
addressed the problem by simply putting all encrypted traffic in the
slow lane. That means that any time someone sends encrypted data, it
will take longer to transmit. People encrypt their data for a variety of
valid reasons, for example, to protect privacy, secure sensitive
financial transactions, protect trade secrets, and guard against
surveillance. If all encrypted data is automatically slowed down, it
would discourage people from using encryption at all.

Class-based traffic management harms individual users.

Class-based
traffic management takes the power to choose the right kind of service
out of the hands of users and puts it into the hands of ISPs. However,
people have different needs for speed on the Internet, and the same
person has different needs at different times. As a result, a user’s
needs may differ from an application’s technical requirements, so ISPs
don’t necessarily know what kind of service a user needs. For example,
Internet telephony applications like Skype benefit from low delay, so
ISPs may opt to give them low-delay service. That’s great if you are
doing a job interview, where you want the best quality possible. But if
you are talking with a friend, you don’t need crystal clear quality over
Skype, so low-delay service might not be necessary. File uploads are
generally considered not to be sensitive to delay. If you are uploading
your hard disk to the cloud to do a backup, you will not mind that ISPs
give file uploads lower priority. But if you are a student uploading
homework right before it’s due, or a lawyer filing a brief before the
deadline, or an architect submitting a bid, then the speed of this
upload is your highest priority. As long as ISPs, and not users, have
the power to decide which classes of application get what kinds of
service, users will never get exactly what they need. That’s why
class-based discrimination often harms users.

Class-based traffic management stifles innovation.

Imagine
you develop a new application that would benefit from a specific kind
of service. Entrepreneurs and start-ups typically do not have the
resources or capacity to reach out to ISPs around the European Union to
alert them that their particular application needs a certain kind of
service. Even if a start-up manages to contact ISPs, they may not be
interested in changing their systems for particular applications, which
is a lot of work, especially when new apps don’t have any users yet.
Entrepreneurs should be able to get the kind of Internet service their
application needs without having to seek ISPs’ permission.

Class-based traffic management leads to high costs of regulation.

If
ISPs get to define classes of applications, the only way to challenge
these definitions is to complain to regulatory agencies. The agency
would need to determine whether kinds of traffic are similar enough to
be treated in the same way, a messy and costly process that would
involve lots of lawyers and expert witnesses. This not only creates high
costs of regulation, but also tilts the playing field against
anybody — users, start-ups, small businesses, low-cost speakers — who
doesn’t have the money to engage in long and costly proceedings before a
regulator.

SOLUTION:
The Parliament should adopt amendments that prohibit ISPs from
differentiating among classes of applications unless it’s necessary to
manage congestion or maintain the security or integrity of the network.
The proposal already contains an exception that allows ISPs to
differentiate among classes of applications if that’s the only way to
manage congestion. Thus, removing the language that allows class-based
traffic management at all times protects users, competition, and
innovation, while still giving ISPs the tools they need to manage their
networks.

PROBLEM #4:

The
proposal allows ISPs to start managing congestion in the case of
impending congestion. That means that they can slow down traffic
anytime, not just during times of actual congestion.

The
proposal gives ISPs a carefully calibrated set of tools to manage
congestion. In particular, it allows them to differentiate among classes
of traffic if doing so is necessary to deal with temporary or
exceptional congestion. The relevant provisions have been designed
carefully to ensure that discriminatory traffic management remains the
exception rather than the rule.

However,
the proposal allows ISPs to use the same tools to prevent “impending”
congestion. Since the meaning of “impending” is not clearly defined,
this provision opens the floodgates for managing traffic at all times.
It makes it easier for ISPs to discriminate among classes of
applications even if there is no congestion, using the justification
that congestion was just about to materialize.

SOLUTION:
The Parliament should adopt amendments that limit ISPs’ ability to
discriminate against traffic to prevent impending congestion.

HOW WE GOT HERE — AND WHAT WE SHOULD DO NEXT

In
April 2014, the European Parliament voted for strong network neutrality
rules for the European Union. But under European law, network
neutrality rules need to be adopted jointly by the Parliament and the
Council, which consists of the representatives of the governments of
each member state. Over the past year, the Council has consistently
supported proposals that were significantly weaker than the Parliament’s
text. In late June, representatives of the Parliament and the Council
unexpectedly reached a compromise in informal negotiations. This
compromise proposal was formally adopted by the Council in September.

If
a majority of the members who vote approves this flawed compromise next
Tuesday, the rules are adopted and become law. Europe will have far
weaker network neutrality rules than the US, and the European Internet
would become less free and less open. By contrast, if a majority of the
members approves amendments, the text goes back to the Council. The
Council can then accept the amendments, and they become law. If the
Council rejects the amendments, a joint committee consisting of
representatives of the Parliament and the Council has six weeks to come
up with a compromise. Any compromise would then have to be adopted by
the Parliament and the Council.

The future of the Internet in Europe is on the line. It’s up to all of us to save it.

– Barbara van Schewick. Law Professor, Stanford Law School. Director, Stanford Center for Internet and Society. Author, Internet Architecture and Innovation. This piece originally appeared in Medium.