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


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  • identicon
    Anonymous Coward, 26 Oct 2015 @ 5:37am

    Newspeak...

    This is not a proposal for net neutrality. It is in fact a proposal for the removal of net neutrality.

    If you really want net neutrality, you don't need 9 pages of legalese. You just need one rule:
    - ISP must pass all requests and data from all customers (both clients and servers) without regard of the origin, destination, nature and/or content in an equally swift manner.

    Every other rule can only make it less neutral.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Oct 2015 @ 6:36am

    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.

    ᴅɪsᴄʟᴀɪᴍᴇʀ ,
    Tʜɪs sᴛᴜᴅʏ ᴡᴀs ʙᴀsᴇᴅ ᴏɴ 2 ᴘᴇᴏᴘʟᴇ ᴏɴᴇ ᴏғ ᴡʜᴏᴍ ᴅɪᴅ ɴᴏᴛ ᴄᴏᴍᴘʟᴇᴛᴇ ᴛʜᴇ sᴛᴜᴅʏ ᴀɴᴅ ᴄᴀʟʟᴇᴅ ɪᴛ ʀᴜʙʙɪsʜ.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Oct 2015 @ 6:57am

    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.

    What a surprise, when the data caps are removed people make more use of the Internet.
    The question illustrates how surveys can get the answer desired. What they should have asked is:
    Do people want their ISPs to decide what sites they can visit?

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 26 Oct 2015 @ 7:28am

    the flimsy, 2010 rules proposed in the U.S. back in 2010

    I'm gonna have to report you to the Department of Redundancy Department for that one.

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 26 Oct 2015 @ 7:31am

    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.

    So the ISPs are good guys for exempting attractive, high-demand services from the data caps that the ISPs themselves established.

    If Superman used his laser vision to set a building on fire, and then rescued everyone inside from the flames, would people still call him a hero?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 26 Oct 2015 @ 8:15am

      Re:

      So long as he was still within hearing range, absolutely.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Oct 2015 @ 8:40am

      Re:

      "If you will not have to watch out for your usage of a service, will you be more inclined to use it, compared to similar services?"

      The question will always be framed in a manner with big upside and no downside for the user. If you get into the specifics of how such things work, you will end up with a question the size of novel and most people not grasping even the basics. And the only objection would be moral.
      The user choice is common sense!

      Thus why it is a prime example of a market needing legislation. That EU cannot come up with a common answer is bad in this case. Especially since this will be forced upon the memberstates anyway, thus not even helping nationalists.

      In such cases the commission have to realise that no legislation is better than sloppily worded messes like this.

      reply to this | link to this | view in chronology ]

  • icon
    wereisjessicahyde (profile), 26 Oct 2015 @ 8:48am

    Huh?

    "Like in the States, the rules prohibit the outright blocking of websites and content (something no ISP in its right mind would do anyway)"

    Did someone forget to tell the UK? According to Torrentfreak (no official figures have been released)the big "5" BT, Virgin Media,SKY, EE and Talk Talk (

    reply to this | link to this | view in chronology ]

  • icon
    wereisjessicahyde (profile), 26 Oct 2015 @ 8:54am

    Huh?

    "Like in the States, the rules prohibit the outright blocking of websites and content (something no ISP in its right mind would do anyway)"

    Did someone forget to tell the UK? According to Torrentfreak (no official figures have been released)the big "5" BT, Virgin Media,SKY, EE and Talk Talk (surprised Mike hasn't covered their latest hack news)are blocking close to 150 sites.

    Sorry the post above went weird. The site doesn't like ">" in reverse.

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 27 Oct 2015 @ 3:33am

      Re: Huh?

      The TT hack news?

      "Script kiddie used SQL injection to break into Drupal website."

      A fifteen year old boy from Northern Ireland has been arrested on suspicion of carrying out the Talk Talk hack. Talk Talk, whose Drupal site that had not been updated to latest version, says its security is 'head and shoulders above the competition.' The terrifying thing is they may well be right: poor website security is rife among large companies, which often outsource their IT to people who don't even update the website software or keep an eye out for news of vulnerabilities or apply the patches made available when such vulnerabilities are announced.

      Since Talk Talk has also complained of being DDoSed, we can also assume they don't use Cloudflare or take other precautions to protect themselves from malfeasance.


      There's not much news there.

      reply to this | link to this | view in chronology ]

  • icon
    Derek Kerton (profile), 26 Oct 2015 @ 10:49am

    People Like Free

    "Research shows that zero-rated applications are far more attractive to users than those that are not."

    Well, yeah. But is that such a bad thing?

    I mean, here at Techdirt, we love disruptive technologies that use "free" to offer increased value to users. Google offers maps for free and kills off in-car GPS sales. Waze offers free better driving data, and eats into Google maps. All good, right? So why is "Free" so wrong when used by incumbents?

    I want a Neutral Network, but neutrality, in the case of zero-rating, simply means that the zero-rating ability should be open to ALL content providers, not just the ones chosen by the ISP. Yeah, that may be tougher for startups than bigger players, but tough shit, right? Competition was never promised to be easy.

    "This makes police work harder" is a bullshit reason to ignore the 5th Amendment. Data doesn't exist for the purpose of making their job easier. Tough. Similarly, "this makes it harder for startups" is a bullshit reason to say zero-rating is bad. Data pricing from incumbents doesn't exist to make it easier for new entrants.

    Lower prices, free offers...these are all valid elements of competition. Economists see it this way, except when the low prices are just a short-term way to kill off competition, which we call "dumping". But zero-rating is NOT dumping (although it could be if it were restricted to the ISP's preferred partners.)

    As long as zero rating is "open", as in all content providers have fair access to offer them, then I cannot see it as evil.

    Think of rail transport. What if BNSF charged for rail cargo across the country. But Ford offered free delivery of it's cars, by paying BNSF. That would offer Ford a market advantage. Is that unfair? NO, so long as BNSF also offers the same option to GM, Honda, or upstart Tesla. Seller pays shipping is not a new idea, and is not unfair.

    Karl, you're picking sides here. You are on the side of the upstart, the underdog. Frankly, so am I. But that doesn't mean that we have to argue that every move the incumbent makes which is advantageous to them is wrong. Some of their moves are just a good strategy. In this case, it increases consumer choices, offers something to consumers who may not want to pay for data at all, and offers content businesses the ability to innovate on some different business models.

    reply to this | link to this | view in chronology ]

    • icon
      Mason Wheeler (profile), 26 Oct 2015 @ 10:57am

      Re: People Like Free

      I want a Neutral Network, but neutrality, in the case of zero-rating, simply means that the zero-rating ability should be open to ALL content providers, not just the ones chosen by the ISP.

      Yeah, that's called "not having caps in the first place," and it's the position that Techdirt has always (AFAICT) been in favor of.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Oct 2015 @ 3:14pm

      Re: People Like Free

      What you propose with 'open zero rating' is for the content providers to pay off the ISP so their content is considered zero-rating.

      Ever wonder how much the ISP is going to charge the provider of a competing VOIP service to be included into this scheme?

      Didn't think so.

      reply to this | link to this | view in chronology ]

      • icon
        Derek Kerton (profile), 30 Oct 2015 @ 11:32am

        Re: Re: People Like Free

        AC, I understand your point, and agree.

        But what you are doing is relying on your skills as a pre-cog to pre-punish them for that pre-crime. That is not justice.

        If regulators allow zero-rating, it is ONLY fair if the same price of transport is paid by ALL content companies. But in this manner, it IS fair. Do I trust the big ISPs not to take it one step further and choose winners? Heck, no. But the crime is in that second step, NOT the first.

        There is ample precedent. Trans Canada Pipelines is in the news lately for Keystone XL - they operate pipes and charge other companies for transport of natural gas. But there was a company called Western Gas Marketing Limited, wholly owned by TCP that sold gas. The regulator said these two must operate separately, and (here's the connection) TCP could charge other gas companies for transport, but must charge Western Gas the same fees for transport. This de-coupling ensured that the monopoly of the pipe did not determine the winner in the natural gas sales market. So, IF network operators want to do zero-rating, there is a fair way: they must decouple their content biz from their transport biz, and charge the same prices to all comers. Neutrality is thus preserved.

        reply to this | link to this | view in chronology ]


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