Network Neutrality History and Future

Roma 15 March 2013

Author:

• Regulating Code– MIT Press, March 2013

• Oxford Bibliography of Internet Law– Oxford UP, 2012

• Network Neutrality: A Research Guide – in 'Handbook Of Internet Research' (Elgar, 2012)

• Internet Co-regulation– Cambridge UP, 2011

• Net Neutrality: Towards a Co-regulatory Solution– Bloomsbury, 2010

Prior art....

In this talk

• I explain its past, • explore the legislation and regulation of its

present, and explain that • economics and human rights will both play a

part in its future.

Nothing in regulation is new

Common Carriage not new

• Began with obligations on inns/boats• Determined by public function of networks• Continued into modern networks• E.g. Railways and telegraphs• 1844 Railway Regulation Act– Setting both emergency access (‘kill switch’)– AND Parliamentary trains

• FRAND end-to-end access at set cost

The Internet as a platform for innovation

vs.

Network neutrality past/present• “messages received from any individual, or from any

telegraph lines connecting at either of its termini, • shall be impartially transmitted in order of reception”

– [Pacific Telegraph Act of 1860]• “Just as telephone companies are not permitted to tell

consumers who they can call or what they can say, • broadband carriers should not be allowed to use their

market power to control activity online.” – [Guide to Net Neutrality for Google Users]

Federal Communications Commission

• 2005 ‘4 Internet Freedoms’• Consumers are entitled to

1. access lawful Internet content of choice.2. run applications and use services of choice,

1. subject to the needs of law enforcement.3. connect their choice of legal devices

1. that do not harm the network.4. competition among network providers,

application and service providers, and content providers.

European Commission 2009

• NRA powers to set minimum quality levels for network transmission services – promote "net neutrality" and "net freedoms" for citizens.

• Consumers must be informed – before signing a contract – about service subscribing, – including traffic management techniques and their impact

on service quality, – as well as any other limitations – (such as bandwidth caps or available connection speed).

• NRAs able to separate communication networks from their service branches, as a last-resort remedy.

The problem in a graphic

Telcos never liked the Internet

• AT&T’s Jack Osterman reacting to • Paul Baran’s 1964 concept of the Internet: • ‘First it can’t possibly work, and if it did, • damned if we are going to allow the

creation of a competitor to ourselves.’

NORMS FROM ABOVE

Or in a picture…

Net neutrality permanent feature of telecoms law

• It is a debate which – has existed since 1999 – will grow in importance as

• Internet matures & service quality increases • demand on the network for – more attractive fixed and – mobile/wireless services.

1999

• Network Neutrality debate began in 1999• Mergers: cable TV and broadband companies• AT&T/MediaOne and AOL/TimeWarner• Lessig and Lemley FCC submission:– ‘The end of End-to-End’

• Before ‘Code and Other Laws…’• Fear of closed duopoly model

2000s Debate• 2002-4 US ‘Title II’ telecoms competition

removed by courts, Republican FCC – Brand X and Trinko cases, Triennial Review

• Lessig and Wu write to Congress 2002: – fear cable-TV business model– Wu (lessig’s protégé) term ‘net neutrality’ 2003

• FCC introduces 4 ‘Net Freedoms’ 2005– Not including enforcement of same!– Congress fails to legislate 2005-6– 2008 – Obama campaigns on net neutrality

Telecoms law

• More than just competition law• Are ISPs all engaged in similar practices?– All discriminating against innovative users– Blocking gamers and P2P file sharers– Are they all doing it for security reasons?

• Vertical integration and discrimination?– US Comcast (2008) and Madison River (2005) – easy FCC vertical integration cases

2009 FCC, CRTC and European Commission introduce vague broad

principles of non-discrimination2013 devil lies in the detail…

Incidentally it’s not net neutrality...

• It’s ‘the open Internet’• In both EC consultation and FCC Order

US FCC Order 2011, challenge 2012• FCC Report and Order (2010) Preserving the Open Internet,

– 25 FCC Rcd 17905 • FCC Report and Order, In The Matter Of Preserving The Open

Internet And Broadband Industry Practices, – GN Docket No. 09-191, WC Docket NO. 07-52, FCC 10-201 § 21-30– Published 22 Dec 2010, appeared Federal Register 23 Sept 2011

• In Re: FCC, In the Matter of Preserving the Open Internet, Report and Order, FCC 10-201, 76 Fed. Reg. 59192 (2011),

• Consolidation Order - Judicial Panel on Multidistrict Litigation, Oct. 6, 2011

– http://commcns.org/sOFyyT

Key Policy Concerns

• Service available to consumers– What kind of QoS should consumers expect to get when they purchase

‘basic’ broadband Internet access?– Will consumers be able to access the applications that they want via

the broadband and mobile Internet?

• Discrimination/monopoly rents– To what extent can network operators treat differently the traffic of

particular content or application providers?– When can network operators charge for QoS on different terms to

similarly situated providers?

Anti-NN behaviour addressed?

NRAs tackling anti-NN behaviour will depend on:• Ability of complainant to prove discriminatory behaviour– poor customer service distinguished from discrimination?

• How the 2009 Framework is transposed• Speed and effectiveness of NRA decision-making• Notifying proposed measures (including non-SMP remedies) – which Commission may veto

In SMP markets, • SMP analysis before non-SMP remedies can be applied?

Back in 2007…

04/09/2023 26

‘Negative neutrality’

or

Net neutrality ‘lite’

Net Neutrality: European and Comparative Approaches

2 elements:1. present net neutrality 'lite' debate 2. Future net neutrality 'heavy'

• fibre access networks

Discrimination and Net Neutrality

Non Discriminatory regime

Blocking

Quality (QOS discrimination)

Charging (price discrimination)

Everyone’s shaping traffic

We need rules of the road?

Facebook advert for neutrality?• $100billion business built in 6 years– billion users– Not permitted in China/Iran/N.Korea

• Rupert Murdoch bought MySpace 2005– His revolutionary new idea: paywalls

• So who’s on the right side of history?• Note: Facebook now cutting deals with mobiles – for advertising revenue share…

OPTIMISM

Four types of market failure: legitimacy for regulators to act

1. Market power– As in Comcast (2008) and Madison River (2005)

2. Lack of information/asymmetries– Ofcom work on easier switch between ISPs

3. Quality of service– Claim of P2P and gamers that they are blocked

4. Provision of public goods– Welfare loss through lack of innovation– Much more complex and far-sighted Lessigian view

New Articles 20 and 22, Recital 26:• Consumer protection/citizen rights NOT SMP• Requirements to notify customers & NRAs– But will need civil society activists– To detect discrimination– To notify higher-end consumers of problems

• Added to interoperability requirements• Article 5 Access/Interconnection Directive

DIRECTIVE 2009/136/EC

Article 22: Quality of service

1. Member States shall ensure that NRAs are• able to require networks and/or services to publish • comparable, adequate and up-to-date QoS information2. NRAs may specify the QoS parameters to be measured • content, form and manner of information published, • including possible quality certification mechanisms, • end-users...comparable reliable user-friendly information3. In order to prevent the degradation of service, • Member States ensure NRAs can set QoS requirements.

NRAs shall provide the Commission

1. ... with a summary of the grounds for action, 2. the envisaged requirements and 3. the proposed course of action. 4. This information shall be available to BEREC

The Commission may... make comments or recommendations... – NRAs shall take the utmost account of the Commission’s comments

or recommendations when deciding on the requirements.

Declaration: Neutrality 2009/140EC

The Commission attaches high importance to preserving the open and neutral character of the Internet,

• taking full account of the will of the co-legislators now to enshrine net neutrality as a policy objective and regulatory principle to be promoted by NRAs– Article 8(4)(g) Framework Directive

• strengthening of related transparency requirements– USD Articles 20(1)(b) and 21(3)(c) and (d)

• safeguard NRA powers to prevent service degradation • hindering or slowing down traffic over public networks– USD Article 22(3)

Commission will monitor closely

• the implementation of provisions in Member States, • introducing a particular focus on how the ‘net

freedoms’ of European citizens are being safeguarded – in its annual Progress Report to Parliament and Council.

Commission will monitor the impact of market and technological developments on ‘net freedoms’

• reporting to Parliament and Council before end-2010 – on whether additional guidance is required, and

• will invoke its existing competition law powers – to deal with anti-competitive practices that may emerge.

Kroes: BEREC given key role 2011[1] EC is not leading in evidence gathering –for BEREC:– "At the end of 2011, I will publish the results, including any

instances of blocking or throttling certain types of traffic."

[2] But that produced evidence of widespread infringement - Madison River Skype blocking?– recommend setting EU guidance rules• "more stringent measures...[in] the form of guidance."

[3] "If this proves to be insufficient, I am ready to prohibit the blocking of lawful services or applications.”

• means guidance 2013 - regulatory action 2014, if ever.

BEREC response 2010

• EC (2010) consultation on the open Internet and net neutrality in Europe

• BoR (10) 42 BEREC Response at – http://www.erg.eu.int/doc/berec/bor_10_42.pdf

• “blocking of VoIP in mobile networks occurred – Austria, Croatia, Germany, Italy, the Netherlands,

Portugal, Romania and Switzerland”

BEREC on Discrimination • “Prioritisation implicitly is discrimination”• evaluate negative consequences for – level of competition, – innovation – end users’ interests.

• 2011-12 economic analysis of – potential and theoretical effects of – discriminatory behaviour.

BEREC Deliverables:

1. Detailed Guidelines on Transparency2. 2012 Results on traffic management practices

1. mobiles emerged as biggest problem

3. Guidelines on QoS Requirements4. Reports on discriminatory issues5. Report on IP interconnection

December 2011 documents

• BoR 53(11) Quality of Service • BoR 67(11) Transparency, at – erg.eu.int/documents/berec_docs/index_en.htm

2013: Kroes no longer net neutral

Net neutrality? Let the market decide (Libération)• "consumers need effective choice on the type of

internet subscription they sign up to. – real clarity, in non-technical language"

• In early 2010, she said ISPs • "shouldn't be allowed to limit the access to service

or content out of commercial motivation, but only in cases of security issues and spamming“

• http://chrismarsden.blogspot.it/2013/01/net-neutrality-let-market-decide-says.html

Net neutrality laws 2012Country Legal Approach

Netherlands Law of May 2012

Chile & Finland Universal access to ‘unfiltered’ Internet

United States FCC Open Internet Order Sept ‘11

Norway Co-regulation – 2009 agreement

Canada CRTC rules 2009 (not implemented?)

Japan, UKFrance

Self-regulation unenforcedARCEP ‘Ten Principles ‘

• 19 December 2012: Slovenia net neutrality law• 1 January 2013: Netherlands to enforce 2012

law• March 2013: France proposes net neutrality law– And search neutrality? ‘all intermediaries’

• That would be 4th country in Europe:– Finland via universal service– Netherlands after mobile WhatsApp blocking– Slovenia

Net neutrality laws 2013 update

Economic Communications Act 2012: • "net neutrality, which means that operators will have to

send internet traffic with uniform speed and permeability regardless of the content“

• ISPs prevented from restricting, or slowing Internet traffic

• except to solve congestion, security or addressing spam. • Commercial differentiation of QoS will be prohibited.• ISP prohibited from different connectivity prices

– strong impact on mobile operators “data caps”

Slovenia net neutrality

US FCC Order 2011, challenge 2013• FCC Report and Order (2010) Preserving the Open Internet,

– 25 FCC Rcd 17905 • FCC Report and Order, In The Matter Of Preserving The Open

Internet And Broadband Industry Practices, – GN Docket No. 09-191, WC Docket NO. 07-52, FCC 10-201 § 21-30– Published 22 Dec 2010, appeared Federal Register 23 Sept 2011

• In Re: FCC, In the Matter of Preserving the Open Internet, Report and Order, FCC 10-201, 76 Fed. Reg. 59192 (2011),

• Consolidation Order - Judicial Panel on Multidistrict Litigation, Oct. 6, 2011

– http://commcns.org/sOFyyT

1. generalize from the particular2. pretend competition solves the problem3. pretend to be technologically neutral4. regulate asymmetrically5. don’t provide effective protection for

consumers6. don’t protect freedom of expression7. don’t understand Internet innovation

Net Neutrality a microcosm of European telecoms policy failures

• Generalising from the particular• Netherlands advanced telecoms competition• Swedish mobile cartels• Romania has fibre and 450MHz 4G• UK has no 4G nor any sign of it!– 4 MNOs in UK – only one acts for consumer interest

1. One size does not fit all

• Standard 1990s answer to 1980s monopoly problem

• We are still in some Chicago School fantasy?• ‘American problem’ – so why US solution?• All ISPs have incentives to block – file-sharing and VOIP

• Naked DSL anyone?– Why do we still have voice telephony?

2. Competition is not the answer

• Mobile is not fixed!• Cable is not DSL• Why pretend that we can solve this in a

platform-neutral manner• Architecture matters!

3. Technological neutrality?

We need rules of the road?

Managed services FRAND

FairReasonable andNon-discriminatoryAccess• means Murdoch, UEFA and Disney – can’t cut exclusive deals to freeze out

competitors• Universal service must also be considered• As well as Public Service must-carry

• Fixed incumbent regulated as SMP• Problem is not retailers of wholesale network• Why don’t we ex ante regulate?• NOT cable monopolist• NOR satellite/ISP combine– Must carry– Due prominence

4. Asymmetrical regulation

What’s the problem?– ‘Anecdote’ is not evidence–Nor is ex post an effective remedy

Ofcom work on transparency and switching– Transparency like mobile pricing?– Switching like: let them eat cake?

5. Prosumer law and redress

• I have made an extended argument for prosumers to be protected

• Paper at EuroCPR March 22• Book with MIT Press March 22– with Ian Brown (Oxford Internet Institute)

Prosumer Law

• Published 22March 2013

• ‘Prosumer law’ article (now on SSRN)

• Comments welcome!

04/09/2023 59

6. ISPs as police?

• ‘Internet’ is unrestricted• It’s the right to communicate• Restriction is censorship– Tim Berners Lee tells the truth

• La Rue: UN Human Rights Council– warns against private as well as state censorship

• Akdeniz: OSCE– Article 10 ECHR, Article 19 ICCPR

• European Data Protection Supervisor– Warns about behavioural advertising and tracking

Citizens’ freedom of expression

Losing liberty?

• ISPs important intermediary limited liability• Based on their wise monkeys role• Behavioural advertising – PHORM• Blocking and filtering• Throttling on non-transparent basis• Removes 2000/31/EC Art.12-14 exemption • Freedom of expression vital to democracy

European Data Protection Supervisor October 2011

• Concerned that traffic management would result in exposure of users’ personal data– Including IP addresses

• ‘Opinion on net neutrality, traffic management and protection of privacy and personal data’ – http://www.edps.europa.eu/EDPSWEB/webdav/

site/mySite/shared/Documents/Consultation/Opinions/2011/11-10-07_Net_neutrality_EN.pdf

• Value chain analysis• Problem – innovation at content-app-services

level• Providing fibre is not innovation by ISPs!• So whole basis of policy is flawed• Do telecoms regulators understand the

Internet?• Are politicians ignorami?

7. What innovation?

• Survey of consumer broadband to find problems• Example: BBC iPlayer ‘traffic lights’ scheme• Example: Skype reporting (that’s Microsoft…)• Example: SamKnows! FCC and Ofcom surveys• Example: Consumer forums/Twitter etc.• Example: Neubot and other consumer software• BUT it needs regulatory commitment• Based on competition AND freedom of expression

Solution: much faster consumer-oriented regulatory evidence

Questions? cmars@sussex.ac.uk@ChrisTMarsden

Four types of market failure: legitimacy for regulators to act

1. Market power– As in Comcast (2008) and Madison River (2005)

2. Lack of information/asymmetries– Ofcom work on easier switch between ISPs

3. Quality of service– Claim of P2P and gamers that they are blocked

4. Provision of public goods– Welfare loss through lack of innovation– Much more complex and far-sighted Lessigian view

Copyleft: Blocking injunctionsInjunctions must be effective, proportionate and dissuasive 

– Article 2(3) Enforcement Directive: measures 'effective, proportionate and dissuasive'. – Injunctions directed towards future infringements are not as straightforward. – consider the lengths and expense for online intermediary to comply

Injunctions must be fair and equitable– Article 3 Enforcement Directive

• not unnecessarily complicated or costly, entail unreasonable time-limits or unwarranted delays.

No general obligation to monitor– must not amount to an obligation to actively monitor all customer data: Article 15 ECD

Injunctions must not create barriers to legitimate trade– Art.3 Enforcement Directive and basic EU law on the free movement of goods and services. – injunction cannot have as its object or effect a general and permanent prohibition on selling,

• for example, all goods bearing a particular trade mark.

Injunctions must strike a fair balance• Promusicae) v Telefónica requires Member States to balance competing interests,

– rights owner to property (incl. intellectual property) and effective judicial protection, – right of the alleged infringer to the protection of personal data on the other hand.