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Regulating and Implementing Network Neutrality

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Presentation with legislative update 25 March

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Regulating and Implementing Network Neutrality

  1. 1. Regulating and Implementing Network Neutrality Professor Chris Marsden COMREG 25 March 2013
  2. 2. The problem in a graphic
  3. 3. Net Neutrality: European Approaches Network neutrality growing policy controversy, 2 elements separated: present net neutrality lite debate and the emerging net neutrality heavy concerned with fibre access networks in future.
  4. 4. Implementation by Nation1. You know about Norway2. United States3. United Kingdom4. Netherlands5. Slovenia6. France
  5. 5. Net neutrality laws 2013Country Legal ApproachNetherlands 15 May 2012 (S.7.4.a of Telecoms Law)Chile & Universal access to ‘unfiltered’ InternetFinlandUnited States FCC Open Internet Order Sept ‘11Norway Co-regulation – 2009 agreementCanada CRTC rules 2009 (not implemented?)Japan, UK Self-regulation unenforcedFrance ARCEP ‘Ten Principles ‘
  6. 6. 1. Norway – co-regulationHappy 4th birthday – since March 2009Caused by ISP blocking national broadcaster video serviceEnforced by co-regulatory pact – complaints?Other countries are trying less effective forms of ‘co’While pretending it’s really ‘self’Examples are US and UK US since 1999 UK since 2006I agree – in fact, I wrote a book about it!
  7. 7. Book launched February 2010 100,000 downloads first 2 months 2nd edition in paperback 20157
  8. 8. Net neutrality permanent feature of telecoms lawIt is a debate which has existed since 1999 will grow in importance asInternet matures & service quality increasesdemand on the network for more attractive fixed and mobile/wireless services.
  9. 9. 2. United StatesFifteen years and counting…FCC Chairmen: Reed Hundt Michael Powell Kevin Martin Julius Genachowski Still continues to be non-enforced
  10. 10. Verizon v. FCC, Case No: 11-1356 D.C. Circuit Court of AppealsFCC Order: In the Matter of: Preserving the OpenInternet; Broadband Industry Practices (rel. Dec. 23, 2010) FCC 10-201; GN Docket No. 09-191; WC Docket No. 07-52Petition for Review filed September 30, 2011.2011 Order consolidates case numbers 11-1356, 11-1403,11-1404, and 11-1411 with lead case number 11-1355Open Internet Order legitimacy court case expected judgment now summer 2013
  11. 11. Special and Managed ServicesFCC excludes Quality of ServicePrivate ‘managed’ or ‘specialized’ services IPTV, VOIP, emergency calls and telemedicineThese use the IP pipe, but a reserved section How big is the private pipe? 10% or 90%Who gets access? Anyone who pays? Or only those ‘preferred partners’ to ISPs? Do you only see certain IPTV channels? Its making part of the pipe back into cable!
  12. 12. FCC uses two advisory groups: [1] BITAGSelf-regulation: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2032233Broadband Industry Technical Advisory Group Set up by Dale Hatfield from Colorado in 2010 Multi-stakeholder – techie-heavy http://www.bitag.org/bitag_organization.php?action=historyTakes on test cases from 2012 as no referred cases Handles FCC cases free of charge Industry pays $60,000 per case (if there were any)
  13. 13. FCC: [2]Open Internet Advisory Committee Co-regulatory: appointed by FCC in May 2012 http://www.fcc.gov/document/open-internet-advisory- committee-members-announced Chair: Jonathan Zittrain (Harvard Law), Vice-chair David Clark (MIT/IETF/engineer) Multi-stakeholder – includes NGOs and industry Specialized Services definitions sub-group When can a managed service lane be partitioned out of the regular open IP stream?
  14. 14. Working assumptions - require case studies to flesh out their details : "Specialized services is a term that is meaningful only within the context of the Order. It is a way to talk about “anything else” that is IP-based over a physical access path. It is NOT a new category of service for which a class of regulation is applicable."
  15. 15. “Service is NOT a specialized service, and is subject to the Order if: [1] The service is a general service e.g. a service like IP on which higher-level services can run, [2] It reaches most… of the end-points of the Internet As opposed to a specific “user-level” service like telephony or home security, which is presumably a specialized service E.g. one cannot evade the Order by offering an Internet-like service that cannot reach a small country somewhere."
  16. 16. Limits the reach of specializedservices that evade the OrderExample"If [a DSL or cable ISP] decided to offer a “poor”Internet service, would we view this as: “Better than nothing or unacceptably slow[?]“Perhaps they can call it Internet but notbroadband?"Do we: [1] impose FRAND conditions and [2] insist that slow service is NOT the real Internet?
  17. 17. 1999Network Neutrality debate began in 1999Mergers: cable TV and broadband companiesAT&T/MediaOne and AOL/TimeWarnerLessig and Lemley FCC submission: ‘The end of End-to-End’Before ‘Code and Other Laws…’Fear of closed duopoly model
  18. 18. 2000s Debate2002-4 US ‘Title II’ telecoms competition removed bycourts, Republican FCC Brand X case, Triennial ReviewLessig and Wu write to Congress 2002: fear cable-TV business model Wu coins term ‘net neutrality’ 2003FCC introduces 4 ‘Net Freedoms’ 2005 Not including enforcement of same! Congress fails to legislate 2005-6 2008 – Obama campaigns w.net neutrality
  19. 19. 2009 –11 FCC, CRTC and European Commissionintroduce vague broad principles of non-discrimination 2012 devil lies in the detail…
  20. 20. Incidentally it’s not net neutrality... It’s ‘the open Internet’ In both EC consultation and FCC Order
  21. 21. US FCC Order 2011, challenge 2012FCC Report and Order (2010) Preserving the Open Internet, 25 FCC Rcd 17905FCC Report and Order, In The Matter Of Preserving The OpenInternet 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 2011In Re: FCC, In the Matter of Preserving the Open Internet, Reportand Order, FCC 10-201, 76 Fed. Reg. 59192 (2011),Consolidation Order - Judicial Panel on Multidistrict Litigation, Oct. 6, 2011 http://commcns.org/sOFyyT
  22. 22. In Europe, something was rumbling..
  23. 23. Three wise monkeys‘We have received no complaints’ is NOT ‘I have not listened to any complaints’. Some regulators are: Seeing no evil Hearing no evil Speaking no evil. BEREC analyzes sensibly!
  24. 24. 3. United KingdomDeny – problem does not exist until 2006?Delay – attempt switching/transparency solutions – some success: changes in General Conditions 2006-8 Using SamKnows to measure performance 2010- Broadband Speed Code of Conduct 2008-12Degrade – switch argument into co-regulatory forum: Broadband Stakeholder (sic) Group An industry forum funded in part by government Corporatist conceit
  25. 25. Ofcom: ‘no formal complaints’ BEREC (2010) Response to the European Commission’s consultation on the open Internet and net neutrality in Europe, BoR (10)42 Charlie Dunstone, Chairman, TalkTalk Ofcom International Conference, Nov 2006“We shape traffic to restrict P2P users.I get hate mail at home from peoplewhen that means we restricttheir ability to play games.”
  26. 26. Losing liberty?ISPs important intermediary limited liabilityBased on their wise monkeys roleBehavioural advertising – PHORM 2005-7 EC brings case to CJEU 2010-11 UK Government amends implementation of privacy lawThrottling on non-transparent basis Removes 2000/31/EC Art.12-14 exemption Freedom of expression vital to democracy
  27. 27. Open Internet Code of PracticeBroadband Stakeholder Group 25/7/12 James Heath, Policy Controller, BBC: welcome the code as a positive step forward, alongside Ofcoms commitment to monitor the development of this fast- moving market.‘ Jean-Jacques Sahel, EMEA Policy for Skype/Microsoft, “Together with Ofcom’s forthcoming annual report on the Open Internet, this Code is a crucial step towards ensuring that… very soon, all remaining discriminations against end-users’ right to access content of their choice on Internet cease.”
  28. 28. Why do they say Ofcom?Ofcom tried to strong-arm ISPs into self-regulation Broadband Code of Conduct in 2009/10 BSG transparency code of practice 2011Minister Vaizey had to do same for this BSG approachOfcom research with SamKnowsOfcom has regulatory powers: Transparency – meaningful information on throttling and peaktime speeds Minimum Quality of Service Netherlands simply implemented 2009 EU law
  29. 29. Ed Vaizey phones Sir Tim Berners Lee at home on Sunday 21 Nov. 2010 “I don’t think heavy handed regulation is necessary. “I’m saying we’re not going to put regulatory hurdles in the way – the last 20 years have told us not to do that. “What I announced was business as usual –government was alive to these issues and prepared to intervene in future. “I am absolutely as one with someone like Tim Berners-Lee” Tim disagreed and disagrees! Enjoyable discussion at OECD Paris June 2011 Vaizey more keen to talk to Stephen Carter of Alcatel-Lucent Purveyors of DPI equipment to telcos…
  30. 30. Voluntary Code meaningless“It’s ‘old’ ATVOD: shadowing co-regulation?“The horse designed by a committee which is theVoluntary Code of Conduct on negative discrimination (net neutrality lite)“is so voluntary that Voda, EE and Virgin wont sign upas the porridge is variously considered too hot/cold.” http://chrismarsden.blogspot.co.uk/2012/07/analyzing-uk-voluntary- code-of-conduct.html
  31. 31. ISPs over to Ofcom’s View?Language shows ISPs kowtowed to Ofcom Nov. 2011 report:"it is right that Ofcom take ownership of this issue“new proposed process will be a useful input to Ofcom… inmonitoring the impact of traffic management practices..."voluntary commitments being made in this code closelyrelate to ongoing monitoring work Ofcom… will conduct.“happy to discuss with Ofcom how its future work plansregarding open internet issues could support or input into areview of these voluntary commitments."
  32. 32. My considered viewWhen will Ofcom engage in heavier persuasion topersuade ISPs to come up with a workable solution?I suspect it will take a new minister at the very least, andpossibly a new government.Skype adds that Ofcom should produce an Annual Open Internet Report (which in any case should be a future part of the EC Implementation Report as part of its commitments made to the European Parliament in the 2009 Net Neutrality Declaration).
  33. 33. Not very edifying bit of horse-trading (or camel auctioning), is it? Reminiscent of the decade of industry garbage about misleading advertising, over broadband speeds. Proposal: content providers lodge unresolved complaint with the Broadband Stakeholder Group (see Annex 1) instead of going direct to Ofcom or the EC (or more likely a supportive Euro-MP) I predict that there will be almost exactly zero such farcical reports from BSG to Ofcom in 2013.
  34. 34. Who has NOT signed it? The current signatories of the code are: BE, BT, BSkyB, KCOM, giffgaff, O2, Plusnet, TalkTalk, Tesco Mobile and Three.30% of fixed market Virgin Only superfast ISP, throttler of peaktime content60% of mobile market Everything Everywhere Only 4G operator in 2013 Vodafone World’s largest mobile ISP
  35. 35. 4. Netherlands 15 May 2012: net neutrality lawProhibits internet providers from interfering with traffic of users. allows traffic management in case of congestion and network security, as long as these measures serve the interests of the internet user.Anti-wiretapping provision, restricting deep packet inspection (DPI). They may only do so under limited circumstances, or with explicit consent of user, which user may withdraw at any time. The law allows for wiretapping with a warrant.Internet providers can only disconnect their users in limitedcircumstances. Internet access is very important for functioning information society Disconnection only permitted in case of fraud or when user doesn’t pay bills.
  36. 36. DIRECTIVE 2009/136/ECNew Articles 20 and 22, Recital 26: Consumer protection/citizen rights NOT SMP http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0011:00 36:EN:PDF 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 Interconnection Directive
  37. 37. Article 22: Quality of service1. 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.
  38. 38. NRAs shall provide the Commission1. ... with a summary of the grounds for action,2. the envisaged requirements and3. the proposed course of action.4. This information shall be available to BERECThe Commission may... make comments or recommendations... NRAs shall take the utmost account of the Commission’s comments or recommendations when deciding on the requirements.
  39. 39. Declaration: Neutrality 2009/140ECThe Commission attaches high importance to preserving the open and neutral character of the Internet, taking full account of the will of the co-legislators to enshrine net neutrality as a policy objective and regulatory principle to be promoted by NRAs
  40. 40. Specific strengthening of Directives 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 slowing down traffic over public networks USD Article 22(3) Transparency for end-users
  41. 41. Commission will monitor closely implementation in Member States introducing a particular focus on how European citizens ‘net freedoms’ are safeguarded in its annual Progress Report to Parliament and Council.Commission will monitor impact on ‘net freedoms’ of market and technological developments reporting to Parliament/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.
  42. 42. Kroes: BEREC given key role by EC[1] EC 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] If that produces evidence of widespread infringement - only Madison River Skype blocking? recommend setting EU guidance rules "more stringent measures [in] the form of guidance."[3] "If this proves insufficient, I am ready to prohibit the blocking of lawful services or applications.” That means guidance 2013 regulatory action 2014, if ever.
  43. 43. Net neutrality laws 2013 update 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
  44. 44. 5. Slovenia net neutralityEconomic Communications Act 2012: "net neutrality 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”
  45. 45. 6. France 13/3/13: digital economyminister Fleur Pellerin announcedWork with the ministries of justice and the interiorto draft legislation on net neutrality,National Digital Council (CNN) submitted a report on the subject. freedom of expression not sufficiently protected in French law given development of filtering, blocking, censorship, throttlingWording to be included in 1986 freedom of communication lawCNN suggests extend neutrality to all information access services including search engines, social networks and mobile apps, to guarantee access to information and to means of expression in non-discrimination, fair and transparent manner
  46. 46. BEREC response 2010EC (2010) consultation on the open Internet and net neutralityin Europe http://ec.europa.eu/information_society/policy/ecomm/library/public_ consult/net_neutrality/index_en.htmBoR (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”
  47. 47. BoR (11) 40 Rev1Draft Work Programme for BEREC 2012NRAs’ regulatory remedies availableto address potential discrimination issues, link to the quality of service issue possible IP interconnection market analysis in 2012
  48. 48. BEREC overview of European marketsBEREC investigation task from Commission regarding switching issues and traffic management practices implemented by operators.thorough investigation request dedicated task force, together with Commissionresults consolidated and published 2012 Summary document, no ‘commercial’ detail Worse than useless?
  49. 49. Quality of Service requirements Regulatory Framework: competence for NRAs to set QoS minimum requirements. When should NRAs set minimum requirements what should those be? Harmonised minimum QoS requirements could avoid creating inefficiencies for operators, costs ultimately paid by consumers.
  50. 50. 2012 further guidelines for NRAs Methods for measuring and assessing network and application performance, including by the end users themselves. E.g. NRAs can promote or provide tools end users control or monitor quality include contractually agreed parameters
  51. 51. BEREC Deliverables 20121. Detailed guidelines on Transparency; 1. (depending on outcome of the public consultation)2. Guidelines on Quality of Service Requirements;3. Completion of BEREC Reports on discriminatory issues;4. Report on IP interconnection;5. Inquiry results on traffic management practices.
  52. 52. BEREC preliminary findings9 March 2012“traffic management practices in Europe“blocking of VoIP and P2P traffic is common,“other practices vary widely.“in the process of validating, consolidating andcategorising the data” http://erg.eu.int/doc/2012/TMI_press_release.pdf
  53. 53. “BEREC is very pleased with the high level of responses received.” 250 fixed and 150 mobile operators 25% claim “security and integrity” concerns e.g. controlling “spam” traffic “application-agnostic” approach e.g. buffering OR “application-specific” techniques throttle specific traffic, such as video streaming 1/3rd of fixed operators manage their networks offer specialised services (e.g. telephony or TV) alongside a best efforts) Internet access service.
  54. 54. Discrimination:Prioritisation implicitly is discrimination,evaluate negative consequences for competition, innovation and end users’ interests.2011, BEREC economic analysis ofpotential and theoretical effects of discriminatorybehaviour.
  55. 55. 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/myS ite/shared/Documents/Consultation/Opinions/2011/11-10- 07_Net_neutrality_EN.pdf
  56. 56. Telcos declare war on Google and Facebook: 25 February 2013Cesar Alierta, CEO Telefónica:“Something is now working in the value chain and this is not a levelplaying field.”Franco Bernabè, CEO Telecom Italia:“a couple of players dominate the market, stifling competition asothers struggle to develop a significant customer base”.Randall Stephenson, CEO AT&T: “Policy makers are going to have to be very clear about whether they desire rapid adoption of the latest technologies, or do they desire hyper-competition and the lowest prices possible for the most basic of services.
  57. 57. What next? Net neutrality discussed 1st Internet Science conference Brussels 10-11 April 2013 Professor Ziga Turk, minister in charge of Slovenian law Alissa Cooper, member of FCC OIAC sub-group Carl-Christian Buhr, advisor to Neelie Kroes UK, French and Dutch technical engineering experts
  58. 58. Toolsets/lessons for each approach Norway UK Netherlands USMeasurement Self-declared Ofcom: Consumers e.g. FCC: SamKnows with verification? SamKnows Glasnost/Neubot/ BitsofFreedomTechnical Within co- Broadband NRA – advising BITAG and OIACadvice regulatory pact Stakeholder ministry self/co-regulation Group co- regulationLegal position Co-regulation Not Implemented Order December implemented 2009/136/EU 2010, published 2009/136/EU Sept.2011Efficiency Very fast – first Very slow – Very fast – Very slow – note mover industry foot legislative panic court delay draggingLesson Act fast, get Death by a 1000 Mobile DPI and Lack of stakeholder buy- cuts; deny-delay- blocking bipartisanship in degrade; prompted action causes trench significant – legislative warfare political damage panic
  59. 59. Comments? Questions?@ChrisTMarsdenC.Marsden@sussex.ac.ukhttp://chrismarsden.blogspot.co.uk/ 5000 regular visitors (esp. Washington and Brussels)
  60. 60. Glasnost initial results(Ireland v.small sample)
  61. 61. Sir Edward Coke, Institutes of the Lawes ofEngland (1628) on the Statute of Monopolies [N]ew manufacture must have seven properties. 1. it must be for twenty-one years or under. 2. it must be granted to the first and true inventor. 3. it must be of such manufactures, which any other at the making of such letters patent did not use ... 4. the privilege must not be contrary to law ... 5. nor mischievous to the state, by raising the prices of commodities at home. 6. nor to the hurt of trade 7. nor generally inconvenient.