The European Union adopted last November a revised set of rules governing electronic communications operators. Among those rules, ‘net neutrality’ is promoted as a policy objective and regulatory principle that national telecommunications regulatory authorities must defend. Depending upon how it is implemented in practice, this policy principle has the potential to reshape the way the Internet works and how its users will be able to access it, express themselves and share information.
The meaning of ‘net neutrality’ has been often confused. A neutral network is one where all the data traveling through it must be treated the same way from its starting point to its final destination. In other words, no access provider has the right to interfere with what is going through its pipes. The access provider only has to ensure that its subscribers get a connection to the Internet, at the bandwidth level or download/upload limit they paid for, without meddling in any of the content, services, applications or devices subscribers want to have access to, or that content providers want to offer them.
Contrary to what some have said, claiming neutrality of the net is not claiming the right for a free Internet or an identical quality of service for the same flat price. Neither does this principle prevent access providers from managing their networks for legitimate reasons, such as ensuring network security (e.g., protecting against spam or distributed denial-of-service attacks), nor does it apply to unlawful content, services and applications such as unauthorized distribution of copyrighted works of authorship. Enforcing the obligation of a neutral network and enforcing copyright or other laws are not mutually exclusive.
The reason why net neutrality should be promoted in the first place is because the Internet was originally built in an intrinsically neutral way. The network of networks was conceived to be unbiased towards any particular application or service provider so that the infrastructure could not be in a position to prefer one over the other. It was created in a way that puts the intelligence at the edges (in the end-user’s computer), rather than at the heart of the network.
The current controversy about net neutrality is generally polarized between two camps: content providers and access providers. The first ones generally support neutrality, while the latter oppose it because of the fight going on between the periphery, controlled by content providers, and the heart, or infrastructure, of the network, controlled by access providers. In this battle, opponents intend to control what gives them the opportunity to create and innovate, and therefore generate profits. Net neutrality advocates refer to the nature of the Internet by arguing that it is precisely its neutral feature that has brought about the unprecedented level of innovation it has known since it was first developed in the late sixties.
The debate should probably not focus on who among those two stakeholders has the best arguments, but on coming up with the best way to promote the development of the Internet that is beneficial for the two of them, and address the risks or opportunities that would result from the absence of net neutrality.
Some net neutrality detractors argue that innovation and incentives for investments in new generation networks will be stifled if neutrality is promoted through regulations or if access providers cannot charge content providers for the share of network traffic their content, services, applications or devices require. This is a way to reduce the debate – often purposefully – to who should pick up the tab between content providers, that create traffic-hungry applications (P2P, Internet telephony, video streaming) and access providers, that should not have to bear those costs. Cost allocation seems then the only relevant issue to solve and, once you frame the debate this way, it seems obvious to charge content providers accordingly.
Beyond generating profits, there is a more general societal debate that one has to address about how the Internet might look like if access providers obtain the control over what passes through their pipes. It is a battle that opposes Internet end-users to access providers in a quest for the control over what end-users may use, see or consume on the Internet, and about their freedom to express themselves, get access to the information of their choice and impart it the way they wish. Will people be as free as before if access providers can curtail their right contractually – which is becoming gradually more common – to view specific content, or use a specific service or application?
Recent abuse by access providers towards their subscribers or content providers (e.g., by blocking traffic against certain users, prioritising it in favour of some content providers, or discriminating against others) demonstrates a very tangible harm of consumers’ interests and Internet users’ fundamental right to free speech. Will the new ‘rules of the game’ applicable to Internet access providers be able to adequately address those threats? The EU competition and telecommunications regulatory framework can be interpreted to solve many cases of traffic management abuse, where access providers are blocking certain traffic or discriminating against specific content providers, but also, although to a lesser extent, in case of “access tiering”, where they are prioritising traffic in favour of specific applications, services or devices.
Under the newly enacted “Telecoms Package”, national telecoms authorities will have the powers to establish minimum quality levels for network transmission services so as to prevent traffic hindering or slowing down. Having those rules in place is already a good step, but is the threat they represent for access providers strong enough to deter them from managing network traffic abusively? Indeed, traffic shaping policies and service quality can be – and have been – used as an excuse to discriminate against a competitor’s services or products, or block end-users’ specific applications. Legitimate questions to raise are whether current rules are actually enforced. Are consumers and Internet users aware of them? How easy is it to use them to file complaints? Competition and telecoms sector rules may well exist in the books, but if they are not easily accessible, actually used or effectively enforced, relying on them to preserve net neutrality may be merely wishful thinking.
Neelie Kroes was recently appointed as the Commissioner responsible for the Digital Agenda, which includes telecommunications and net neutrality. In January, the European Parliament will hold hearings to discuss her appointment. This is an opportunity for the public, through its representatives, to question how Commissioner Kroes intends to protect the net neutrality principle that the Commission promised to “keep [...] under close scrutiny” as part of implementing the “Telecoms Package”, and to discuss what has become an important issue for the future of the Internet, but that still carries more questions than answers.
