October 23, 2015 | By Jeremy Gillula and Jeremy Malcolm

Closing the Loopholes in Europe's Net Neutrality Compromise

Since our last update on the upcoming net neutrality regulation in the European Union, a further compromise proposal has been developed, which heads to a vote in the European Parliament on Tuesday next week. On its face, the draft regulation appears to hit all the most important points, including providing that "When providing internet access services, providers of those services should treat all traffic equally, without discrimination, restriction or interference, independently of its sender or receiver, content, application or service, or terminal equipment".

But the devil is in the details. There are several loopholes in the current text which, if not resolved, would result in limited net neutrality protections. Between now and Monday, European activists are pushing for amendments to improve the draft regulation to close these loopholes. Their proposed amendments would address:

  • Specialized services: The specialized services exception allows ISPs to use IP networks for delivery of other online services, distinct from general Internet access that they offer, without complying with the same non-discrimination rules. While the language here is better than in earlier drafts—it no longer allows general Internet access to be negatively affected by the availability of specialized services—clearer language could ensure that the range of specialized services that can take advantage of this exception is narrowly confined to those that legitimately require separate treatment.
  • Zero rating: The current text does not prohibit zero rating outright, but it also doesn't make clear that countries can regulate zero rated services if they choose to do so. Further clarity in the text would help to make clear that member states will retain the ability to regulate zero rating, to address competition or consumer harms that this practice may create.
  • Congestion management: The text contains an exception that would allow providers to regulate impending network congestion, not just actual congestion. This is seen by European activists as overstepping the bounds of reasonable network management. They seek an amendment that would confine network management for congestion to times when the network is already actually congested.
  • Traffic management based on traffic type: Probably the worst aspect of the current text is an exception that would allow ISPs to manage congestion by prioritizing traffic based "on objectively different technical quality of service requirements of specific categories of traffic." This language would give ISPs broad discretion to decide which traffic gets a higher priority based on its claimed Quality of Service ("QoS") requirements, e.g., by prioritizing VoIP traffic over peer-to-peer traffic, or by prioritizing gaming traffic over encrypted traffic on port 443. The problem with this is that in order for ISPs to do this prioritization, they first have to correctly categorize the traffic, which isn't always easy to do. For example, an application which uses peer-to-peer technology for a group VoIP chat service might end up being degraded because it looks like P2P traffic, even though it's actually VoIP traffic. Additionally, ISPs would be unable to categorize encrypted traffic without trying to do some sort of traffic flow analysis, and this analysis would likely fail at correctly categorizing new types of encrypted traffic.  As a result, they could put put new encrypted services at risk of being degraded.  ISPs should be able to prioritize prioritize different classes of traffic, but this prioritization should be at the behest of the customer and easy for the customer to manage. For example, it would be completely acceptable if an ISP offered a customer the option of prioritizing her own VoIP traffic over her own P2P traffic, but the ISP should not prioritize her VoIP traffic over her neighbor's P2P traffic if they're paying for the same level of service.

The amendments supported by European activists are important and should be adopted—especially because the regulation will become European law immediately when passed. (This differs from the alternative procedure of a "directive," which would have to be implemented in each country before it becomes law.) That means there are only a few days remaining to convince European Members of Parliament (MEPs) to support the amendments.

If you live in Europe, you can express your support for the suggested amendments by visiting the coalition site savetheInternet.eu. Please contact your MEP and help preserve an open Internet in Europe today.

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