With 4 Days Left, Sir Tim Berners-Lee, Larry Lessig, And Barbara Van Schewick Beg Europe To Close Net Neutrality Loopholes

from the loopholes-and-hula-hoops dept

Europe only has a few days left to ensure that its member countries are actually protected by real net neutrality rules. As we’ve been discussing, back in October the European Union passed net neutrality rules, but they were so packed with loopholes to not only be useful, but actively harmful in that they effectively legalize net neutrality violations by large telecom operators. The rules carve out tractor-trailer-sized loopholes for “specialized services” and “class-based discrimination,” as well as giving the green light for zero rating, letting European ISPs trample net neutrality — just so long as they’re clever enough about it.

In short, the EU’s net neutrality rules are in many ways worse than no rules at all. But there’s still a change to make things right.

While the rules technically took effect April 30 (after much self-congratulatory back patting), the European Union’s Body of European Regulators of Electronic Communications (BEREC) has been cooking up new guidelines to help European countries interpret and adopt the new rules, potentially providing them with significantly more teeth than they have now. With four days left for the public to comment (as of the writing of this post), Europe’s net neutrality advocates have banded together to urge EU citizens to contact their representatives and demand they close these ISP-lobbyist crafted loopholes.

Hoping to galvanize public support, Sir Tim Berners-Lee, Barbara van Schewick, and Larry Lessig have penned a collective letter to European citizens urging them to pressure their constituents. The letter mirrors previous concerns that the rules won’t be worth much unless they’re changed to prohibit exceptions allowing “fast lanes,” discrimination against specific classes of traffic (like BitTorrent), and the potential paid prioritization of select ?specialized? services. These loopholes let ISPs give preferential treatment to select types of content or services, providing they offer a rotating crop of faux-technical justifications that sound convincing.

The letter also urges the EU to follow India, Chile, The Netherlands, and Japan in banning “zero rating,” or the exemption of select content from usage caps:

“Like fast lanes, zero-rating lets carriers pick winners and losers by making certain apps more attractive than others. And like fast lanes, zero-rating hurts users, innovation, competition, and creative expression. In advanced economies like those in the European Union, there is no argument for zero-rating as a potential onramp to the Internet for first-time users.

The draft guidelines acknowledge that zero-rating can be harmful, but they leave it to national regulators to evaluate zero-rating plans on a case-by-case basis. Letting national regulators address zero-rating case-by-case disadvantages Internet users, start-ups, and small businesses that do not have the time or resources to defend themselves against discriminatory zero-rating before 28 different regulators.”

Here in the States the FCC decided to not ban zero rating and follow this “case by case” enforcement, which so far has simply resulted in no serious enforcement whatsoever, opening the door ever wider to the kind of pay-to-play lopsided business arrangements net neutrality rules are supposed to prevet. Of course European ISPs have been busy too, last week falling back on the old, bunk industry argument that if regulators actually do their job and protect consumers and small businesses from entrenched telecom monopolies, wireless carriers won’t be able to invest in next-generation networks.

Those that care about net neutrality have just four days left to make their voices heard.

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Comments on “With 4 Days Left, Sir Tim Berners-Lee, Larry Lessig, And Barbara Van Schewick Beg Europe To Close Net Neutrality Loopholes”

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FreeByte (profile) says:

Zero-Rated Apps Are Likely Protected Speech

On the issue of mobile zero-rating generally, there is another path that could avoid the conflict altogether. Mobile carriers could embrace simple, “network independent” toll-free apps and achieve the same benefits for themselves and their customers. This is because “autonomous” toll-free app tech is designed to prevent perceived forms of network induced prioritization / favoritism / price discrimination (intentional or accidental), and if implemented properly cannot violate net neutrality principles. With a network independent app, the carrier literally can’t see whether the app requesting data from the network is subsidized or not by the app creator (the app acts to make the carrier “blind” as to which apps are / are not subsidized – ergo discrimination / app favoritism not possible). Also, the regulator’s remit likely ends at the core network’s edge — not extending to the billions of independent apps (3rd party software, whether toll-free apps or otherwise) that already reside on phones after being installed at the sole discretion of the phone owner.
Lastly, since software / apps are likely a First Amendment free speech protection issue (see Bernstein v. United States, Ninth Circuit), one will not wish to regulate where and how coders may or may not install their app creations as this too could limit publication freedoms for other forms of written expression. Many thanks.

FreeByte (profile) says:

The EU Has Free Speech Protections That Cover Software Code

To see why freedom of speech protections will play a major role in the legality of toll-free / zero-rated software apps (stress — apps only) in the EU please read “The Legal Regulation of Software Interoperability in the EU”. http://jeanmonnetprogram.org/archive/papers/05/050701.pdf Of note:
“…because software constitutes expression in the sense of Art. 10 ECHR [European Convention on Human Rights]. This may come as a surprise, but one should bear in mind that source code is written in a language, and is a form of scientific expression and instructional literature (i.e. showing how to produce something). Exchanges in the form of source code amount to a search for ‘better’ software through deliberation. Like mathematics for mathematicians, source code is the language of computer scientists. Scientific or instructional expression of this kind has always been at the core of the right embedded in Art. 10(1), as exemplified in Handyside, in which the prohibition to disseminate a schoolbook was at stake.”

When free speech protections of coders bump into net neutrality issues pertaining to software apps resident on individual devices (i.e, outside control of carriers), free speech (Article 10) will trump net neutrality regulation every time IMO.

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