The EU Prepares To Vote For Awful, Loophole-Filled Net Neutrality Rules

from the semantic-overdrive dept

On Tuesday, the European Union is expected to vote on new net neutrality rules, the end result of months of debate between the European Commission, European Parliament, and the EU Council. Of course just like here in the States, heavy lobbying pressure by ISPs has the lion's share of politicians supporting loopholes that will let giant ISPs do pretty much everything they want. The rules at first glance look very similar to the flimsy, 2010 rules proposed in the U.S. back in 2010 -- allowing ISPs to engage in anti-competitive shenanigans -- provided the carrier vaguely insists it's for the safety and security of the network.

Like in the States, the rules prohibit the outright blocking of websites and content (something no ISP in its right mind would do anyway). And while that's a marginal improvement for some EU members, it's a step backward for places like the Netherlands, Slovenia and Norway where tougher rules currently exist.

As Stanford Professor Barbara van Schewick notes, the rules fail terribly on four major fronts. One, they fail to prevent or even police the zero rating of apps, something we've repeatedly noted lets companies with deeper pockets pay to have their traffic exempted from usage caps -- immediately putting smaller companies and non-profits at a disadvantage. This has been something American consumers have had a hard time understanding, since such systems are usually framed as "1-800 numbers for data" or the data equivalent of free shipping. But van Schewick does a good job explaining the bad precedent set:

"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."

Another problem, which we've noted previously, is that the EU rules carve out huge semantic exemptions for "specialized services," which then aren't really properly defined. The end result are bigger companies paying to have their traffic given priority, those companies passing on these charges to consumers, while, and like zero rating, smaller companies and non-profits are being forced to putter along on the second-class fringes of the Internet:

"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."

Van Schewick also notes the rules allow for "class-based discrimination," or the throttling of entire classes of traffic like BitTorrent -- regardless of whether congestion actually makes it necessary. As we've seen historically (with say Rogers in Canada), when encryption prevents ISPs from using deep packet inspection to snoop on user packets, they'll sometimes just throttle all encryption for good measure. But van Schewick also notes that class-based discrimination can also be abused to hinder 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."

Most of these are semantic loopholes we've seen time and time again in countries trying to get some basic rules of the neutral road on the books. But give the EU telcos credit; they've managed to convince European regulators into a special exemption I'd not seen yet -- one that allows them to engage in anti-competitive behavior -- just as long as they argue it was necessary to thwart congestion that hasn't even happened yet:

"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."

Again, you'll notice a theme with all the loopholes: they allow ISPs to engage in all manner of bad behavior just as long as they provide some semantically-rich, faux-technical excuse justifying the action. This is exactly what the U.S. FCC did back in 2010, and it resulted in an unprecedented public backlash and a demand for better (but still not perfect) U.S. rules. Granted this is all easily fixed, and EU consumer advocates have offered a list of loophole-closing amendments (pdf) that the majority of European Parliament members (376 of the 751) need to adopt ahead of Tuesday's vote if they want the rules to actually mean anything.

Filed Under: broadband, eu, europe, loopholes, net neutrality, zero ratings