Marsden CNRS European net neutrality law & Guidelines 12092016

05/03/2023

Net Neutrality law: NOT business as usual

Prof Chris MarsdenUniversity of Sussex

@ChrisTMarsdenwww.chrismarsden.blogspot.com

05/03/2023

regulation, enforcement and implementation, focussing on EU Regulation 2015/2120 and the Guidelines issued by BEREC on 30 August 2016.

success of the Guidelines is dependent on actions of 28 national regulators

9 observer regulators (one of whom actually wrote the majority of the

Guidelines). comparison with other parts of the world

Past, present and future of net neutrality

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We can begin from principles of Human rights Network architecture (Network) Economic principles

Developed within telecoms law and regulation frameworks

In practice, telecoms regulators adopt, change and use these principles within their frameworks

(nice systems theory doctorate on perturbation awaiting?)

Theory of net neutrality circles back to telecom regulation

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PAST

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Nothing in regulation is new

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The Internet: for everyone

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RFC 6973 Privacy Considerations for Internet Protocols RFC 7258 Pervasive Monitoring Is an Attack

‘process’ rather than a ‘technical’ document, impact on every strand of work the IETF does, including the development and revision of standards.

Ted Hardy (Google): “we’ve spent 20 years optimising for bandwidth and

speed, it’s time we also started optimising for privacy” RFC 7624, Confidentiality in the Face of Pervasive

Surveillance: A Threat Model and Problem Statement Working groups consider pervasive monitoring and provide

guidance for how such attacks could be mitigated.

IETF and Privacy from Government Attacks

IoT relies on stable connections Cloud relies on stable connections Big Data apps rely on stable connections

New Services? That 4th Industrial Revolution (sic) thing?

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Background: Internet Science, RAND, ITC UK, WorldCom, start-ups

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

Net Neutrality: From Policy to Law to Regulation Manchester UP, 2016

Regulating Code (with Prof. Ian Brown) MIT Press, 2013

Network Neutrality: A Research Guide Handbook Of Internet Research

Internet Co-regulation Cambridge UP, 2011

Bibliography of Internet Law Oxford UP, 2012

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Prior art....

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Regulatory Toolkit: which mix of economics, engineering, behavioural & evolutionary neuroscience (‘nudges’ & groups), human

rights law?

Regulatory capture?

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Welcome to the new boss….same as the old boss?

Consumers’ associations & civil society deeply suspicious of DT/Orange links to ministry and former bureaucrats

But they are all honourable men http://www.reuters.com/article/france-orange-

idUSL5N10968F20150729

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By Region (TB per Month)North America

 557,237  831,457  1,199,309

 1,700,159

 2,327,596

 3,208,203 42%

Western Europe

 432,322  707,537  1,045,171

 1,477,156

 2,060,788

 2,795,362 45%

Asia Pacific

 1,578,865

 2,676,873

 4,422,785

 6,725,446

 9,771,677

 13,712,874 54%

Latin America

 276,416  447,991  714,540  1,065,744

 1,521,312

 2,091,703 50%

Central and Eastern Europe

 545,750  946,263  1,510,630

 2,242,669

 3,249,449

 4,442,281 52%

Middle East and Africa

 294,476  569,895  1,038,661

 1,723,221

 2,777,550

 4,313,794 71%

Cisco VNI Mobile Forecast to 2020

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PRESENT

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SCRIPTed: A Journal of Law, Technology & Society

Volume 13, Issue 1, May 2016 https://script-ed.org/article/comparative-case-

studies-in-implementing-net-neutrality-a-critical-analysis-of-zero-rating/

Comparative Case Studies in Implementing Net Neutrality: A Critical Analysis of Zero

Rating

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Country Legislation/ regulation Published Date Enforced

Norway Guidelines[7] 24/2/2009[8]

Zero rating declaration by NKOM of 2014 

Costa RicaSala Constitucional De La Corte Suprema De Justicia[9]

13/7/2010 2010 by Supreme Court precedent

Chile Law 20.453[10] 18/8/2010 Decree 368, 15/12/2010[11]

Netherlands Telecoms Act 2012[12] 7/6/2012 2014 and Guidelines 15/5/2015[13]

Slovenia Law on Electronic Communications 2012[14] 20/12/2012 Zero rating 2015

Finland Information Society Code (917/2014)[15] 17/9/2014 2014

India Regulations (No.2 of 2016) 8/2/2016August: 6 months after Gazette publication date

Brazil Law No. 12.965 23/4/2014Consultation 2015-16, no implementation[16]

Notable laws or regulation

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Brazil follows India, bans zero rating 11 May http://

chrismarsden.blogspot.co.uk/2016/05/brazil-bans-zero-rating-fudges.html

DECRETO Nº 8.771, DE 11 DE MAIO DE 2016 Regulamenta a Lei no 12.965, de 23 de abril de 2014,

para tratar das hipóteses admitidas de discriminação de pacotes de dados na internet e de degradação de tráfego, indicar procedimentos para guarda e proteção de dados por provedores de conexão e de aplicações, apontar medidas de transparência na requisição de dados cadastrais pela administração pública e estabelecer parâmetros para fiscalização e apuração de infrações.

Brazil, India, Chile

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Mobile roaming internationally Potential abolition of charges by 2018

‘Open Internet’ (not net neutrality) Some protection from throttling

Both came into force 1st May 2016 Latter subject to BEREC Guidelines

to be issued by 30 August 2016

EU Regulation 2015/2120

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Details of the Regulation

7 relevant pages with Articles 3-7

19 Recitals: PECP/PIAS TMM v

CAS Interesting

definitions! “Strict interpretation

and to proportionality requirements” (Recital 11)

Four issue areas for BEREC Transparency and evidence

Recital 19, Article 4 in force! Zero rating

Recital 7 ‘material effect’ Specialised services

Recitals 16-17, Art.3(5) Enforcement of TMP/Privacy

Recital 18, Art.3(4), Art.5/6

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Test is not FRAND but RTNDP

FRAND Fair Reasonable and Non-Discriminatory Settled case law and

regulatory practice for this approach

RTNDP Reasonable Transparent Non-Discriminatory Proportionate Not entirely clear where

this standard lies? Case law of CJEU needed? That would delay us

years

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Recital 10, 33-35 – date incorrect on EDPS opinion (14/11/2013) e.g. DPI motivated Dutch law: KPN investor call in May 2011

PHORM returns? 2006-7 illegal interception UK See my 2014 report for government of Korea on exactly this

Italy and UK 3 ad-blocking an example? http://www.bbc.co.uk/news/technology-35615430

“Customers should not have to pay data charges because of adverts

mobile ads should not access handset data without explicit consent,

owners should only see advertising that is relevant, interesting to them

rather than obtrusive and untargeted information”

Specific content monitoring could be interpreted as prohibited by the Regulation

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Relationship nationally & EU level with BEREC members Enforced by DPA, evidence gathered by comms

regulator? Note emerging US FTC-FCC re. Title II data

collection http://www.theverge.com/2016/2/16/11017934/n

et-neutrality-data-collection-fcc-title-ii

Is privacy enforcement by the Article29 Working Group?

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Self- and co-regulatory solutions need explicit legal act

New legislation required in a few extraordinary nations

assuming all stay in the EU/EEA that long….

UK position on government-mandated or “encouraged” opt-ins

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BEREC work to August 2016

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Four weeks’ consultation in July – what process amends guidelines?

“scarcely two months to evaluate and incorporation of potentially thousands submissions in several languages, 

an extraordinary plenary then votes on the finished document” https://netzpolitik.org/2016/netzneutralitaet-wie-es-jetzt-weiter-geht/

Wrong –actually ONE month. London & Oslo, how’s your Slovenian?

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“4million people participated in FCC consultation 

In India, there were over one million people,  arguably greatest direct democratic

participation movements in history, for an internet issue . 

BEREC consultation finishes after twenty days making it the shortest of the three.”

https://translate.google.co.uk/translate?sl=auto&tl=en&js=y&prev=_t&hl=en&ie=UTF-8&u=https%3A%2F%2Fnetzpolitik.org%2F2016%2Fnetzneutralitaet-wie-es-jetzt-weiter-geht%2F&edit-text=&act=url

Students are on holiday in July – good timing?

Or millions…?

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Astroturfed zero rating? TRAI refused to admit FBK poll on FreeBasics

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They hate their telcos Speeds are inadequate in most EU countries – esp.

compared to academic not-for-profit networks They hate surveillance

Five Eyes, Snowden, PRISM, Squeaky Dolphin They value privacy

Schrems, Digital Rights Ireland, PHORM-BT They distrust regulators

See telcos and security services as allies – and you?

Why are (some) people angry?

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But maybe BEREC remains invisible?

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[EDRi evidence to BEREC] right to receive, seek and impart information (Article 11) the freedom to conduct business (Article 16) right to provide services in all 28 Member States (Article

15.2)Traffic management must be application-agnostic: class-based traffic management prevents the roll-out of

new services, harm competition, innovation, privacy, users congestion affects end-users’ choice if not properly

managed

“The Regulation must be read in light of the Charter of Fundamental Rights”

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Telekom’s Hottges’ start-up tax announcement right after adoption of net neutrality rules What will BEREC decide, as FRAND solution

apparently off the table? FRAND would have been easier for you? Or physical/logical separation? DOCSIS3 issue

Regulators must not allow the reclassification of online services and applications as “specialised

services”

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Leads to uncompetitive market consolidation between IAPs & Content Application Providers EU protectionism vs US OTTs? ETNO v. BEREC?

BEREC, NRAs and competition authorities should stop IAPs

making access to their customer base a new form of monopoly

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FUTURE

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affects individual users’ freedom to impart information;

a commercial practice; violates the Regulation’s ban on blocking and

throttling; TMM would not be temporary, as required by

Regulation; distorts competition and limits end-users’ choice.

Is it reasonable to interpret that zero-rating is prohibited?

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Zero rating only used outside EU?

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Free football Slovenia example (Ungerer warning 1999)

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Costs vary enormously along with zero rating to exclude OTTs

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[2016] Comparative Case Studies in Implementing Net Neutrality: A Critical Analysis of Zero Rating

SCRIPT-Ed 13:1 at http://script-ed.org/ [2015] Zero Rating and Mobile Net Neutrality,

Chapter 18, pp241-260 in Belli and de Filippi eds. ‘Net Neutrality Compendium: Human Rights, Free

Competition and the Future of the Internet’ Springer

Research articles on zero rating (in addition to Prof. van Schewick)

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Telecoms regulators will focus on zero rating & net neutrality

There is a privacy issue that is omnipresent Monitoring traffic at network level I have written at length about this elsewhere: Particularly Phorm/BT secret trials in 2006/7

Snowden revealed Vodafone/BT cable interception PRISM programme of GCHQ/National Security Agency

Later violations in developing countries Finfisher software sold by UK defence contractor Hacking Team ‘assistance’ to LatAm governments

Net neutrality and censorship

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Focus on developing countries India, Brazil, Mexico, Russia

Mobile/Wifi as central network/access points Privacy as right infringed, more than free

speech Vital economic importance of expat

VPN/VOIP ‘Remittance societies’ – inc. Bangladesh,

Philippines, Pakistan, Sri Lanka Very good work by LIRNE Asia and others

Further research into privacy, surveillance & net neutrality

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Net neutrality implementation EU/EEA/Brexit UK USA & Canada BRICs & Mexico

Openness and mandated interoperability Social network ‘platform’ regulation

Privacy of data transfer/personal data stores Co-regulation & NGO/civil society debate

Note NN produced 4m US/2m India/500k EU responses Regulating Code Part II

‘Regulating Platforms’?

My future work

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Net Neutrality: Discrimination, Competition,

and Innovation in the UK and USAlissa Cooper and Ian Brown (2015)

ACM Transactions on Internet Technology, 15(1): 2-21http://dl.acm.org/citation.cfm?id=2700055