05/01/2023

Net Neutrality law: NOT business as usual

Prof Chris MarsdenUniversity of Sussex

@ChrisTMarsdenwww.chrismarsden.blogspot.com

05/01/2023

regulation, enforcement and implementation, focussing on EU Regulation 2015/2120 and the Guidelines issued by BEREC on 30 August 2016.

success of the Guidelines is dependent on actions of 28 national regulators

9 observer regulators (one of whom actually wrote the majority of the

Guidelines). comparison with other parts of the world

Past, present and future of net neutrality

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Prior art....

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We can begin from principles of Human rights Network architecture (Network) Economic principles

Developed within telecoms law and regulation frameworks

In practice, telecoms regulators adopt, change and use these principles within their frameworks

(nice systems theory doctorate on perturbation awaiting?)

Theory of net neutrality circles back to telecom regulation

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Bur it’s really who gets what where: Proximus Belgium example

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PAST:

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Nothing in regulation is new

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Regulatory Toolkit: which mix of economics, engineering, behavioural & evolutionary neuroscience (‘nudges’ & groups), human

rights law?

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The Internet: for everyone

IoT relies on stable connections Cloud relies on stable connections Big Data apps rely on stable connections

New Services? That 4th Industrial Revolution (sic) thing?

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Why ‘miraculous’ speed increase?

Bandwidth provisioning; Fibre capacities reaching Pbps transfer on Internet 2 & NTT tests Fibre is sand-water; much cheaper than copper to maintain

Microprocessors (Moore’s Law) Double transistors in 2 years; 200 times better in 15 years

Gordon (2015) “I see Moore’s law dying here in the next decade or so” Digital storage capacity (Kryder’s Rate)

about 15% per year. 1000 times better in 15 years 1994-2009 (anomaly)

Network effects (Metcalfe’s Law); Or more specifically adaptation to humans n x log[n]

Note: may not continue forever https://royalsociety.org/events/2015/05/communication-networks-

sm/

NO ‘explosion’ in IP traffic ~20%

But mobile is growing fast!?

1oEB to 15EB is 50% growth 1ZB to 1.1ZB is 10% growth But 0.1ZB is still 50x greater than 2EB… This is hard for qualitative social scientists such

as lawyers (me) and politicians to understand…. 1,000,000,000,000,000,000,000 bytes is one

zettabyte. Conclusion: mobile is growing, wifi is growing, but there is no explosion!

Cost-growth same since 2002

Which is (more or less) why Internet access + phone line costs £25/€30 for basic service

It used to be £10 phone line and £15 broadband

Now costed as £18 phone line and £12 ADSL (UK)

Of course voters have to rent the ‘phone line’

Competition and old technology determines basic service

1Mbps, 10Mbps, 100Mbps or 1Gbps simply the speeds of different access

technologies 1Mbps ADSL (old school) 10Mbps ADSL2 100Mbps VDSL (short line) 1Gbps (DPCSIS3 or fibre to home)

No miracles in engineering

But it sounds good! 100% growth not 1% GDP/inflation growth “We’ve doubled your ‘superfast’ line speed!” Means…. “We put a new box in the local telephone

exchange” Then “we doubled it again!” Means… “We put a new box in the roadside cabinet”

By Region (TB per Month)North America

 557,237  831,457  1,199,309

 1,700,159

 2,327,596

 3,208,203 42%

Western Europe

 432,322  707,537  1,045,171

 1,477,156

 2,060,788

 2,795,362 45%

Asia Pacific

 1,578,865

 2,676,873

 4,422,785

 6,725,446

 9,771,677

 13,712,874 54%

Latin America

 276,416  447,991  714,540  1,065,744

 1,521,312

 2,091,703 50%

Central and Eastern Europe

 545,750  946,263  1,510,630

 2,242,669

 3,249,449

 4,442,281 52%

Middle East and Africa

 294,476  569,895  1,038,661

 1,723,221

 2,777,550

 4,313,794 71%

Cisco VNI Mobile Forecast to 2020

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PRESENT

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SCRIPTed: A Journal of Law, Technology & Society

Volume 13, Issue 1, May 2016 https://script-ed.org/article/comparative-case-

studies-in-implementing-net-neutrality-a-critical-analysis-of-zero-rating/

Comparative Case Studies in Implementing Net Neutrality: A

Critical Analysis of Zero Rating

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Country Legislation/ regulation Published Date Enforced

Norway Guidelines[7] 24/2/2009[8]

Zero rating declaration by NKOM of 2014 

Costa RicaSala Constitucional De La Corte Suprema De Justicia[9]

13/7/2010 2010 by Supreme Court precedent

Chile Law 20.453[10] 18/8/2010 Decree 368, 15/12/2010[11]

Netherlands Telecoms Act 2012[12] 7/6/2012 2014 and Guidelines 15/5/2015[13]

Slovenia Law on Electronic Communications 2012[14] 20/12/2012 Zero rating 2015

 

Finland Information Society Code (917/2014)[15] 17/9/2014 2014

India Regulations (No.2 of 2016) 8/2/2016August: 6 months after Gazette publication date

Brazil Law No. 12.965 23/4/2014Consultation 2015-16, no implementation[16]

Notable laws or regulation

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Brazil follows India, bans zero rating 11 May http://

chrismarsden.blogspot.co.uk/2016/05/brazil-bans-zero-rating-fudges.html

DECRETO Nº 8.771, DE 11 DE MAIO DE 2016 Regulamenta a Lei no 12.965, de 23 de abril de 2014,

para tratar das hipóteses admitidas de discriminação de pacotes de dados na internet e de degradação de tráfego, indicar procedimentos para guarda e proteção de dados por provedores de conexão e de aplicações, apontar medidas de transparência na requisição de dados cadastrais pela administração pública e estabelecer parâmetros para fiscalização e apuração de infrações.

Brazil, India, Chile

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Astroturfed zero rating? TRAI refused to admit FBK poll on FreeBasics

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“4million people participated in FCC consultation 

In India, there were over one million people,  arguably greatest direct democratic

participation movements in history, for an internet issue . 

BEREC consultation finishes after twenty days making it the shortest of the three.”

https://translate.google.co.uk/translate?sl=auto&tl=en&js=y&prev=_t&hl=en&ie=UTF-8&u=https%3A%2F%2Fnetzpolitik.org%2F2016%2Fnetzneutralitaet-wie-es-jetzt-weiter-geht%2F&edit-text=&act=url

Students on holiday in July – good timing?

Or millions…?

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Mobile roaming internationally Potential abolition of charges by 2018

‘Open Internet’ (not net neutrality) Some protection from throttling

Both came into force 1st May 2016 Latter subject to BEREC Guidelines

to be issued by 30 August 2016

EU Regulation 2015/2120

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Details of the Regulation

7 relevant pages with Articles 3-7

19 Recitals: PECP/PIAS TMM v

CAS Interesting

definitions! “Strict interpretation

and to proportionality requirements” (Recital 11)

Four issue areas for BEREC Transparency and evidence

Recital 19, Article 4 in force! Zero rating

Recital 7 ‘material effect’ Specialised services

Recitals 16-17, Art.3(5) Enforcement of TMP/Privacy

Recital 18, Art.3(4), Art.5/6

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Test is not FRAND but RTNDP

FRAND Fair Reasonable and Non-Discriminatory Settled case law and

regulatory practice for this approach

RTNDP Reasonable Transparent Non-Discriminatory Proportionate Not entirely clear where

this standard lies? Case law of CJEU needed? That would delay us

years

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Recital 10, 33-35 – date incorrect on EDPS opinion (14/11/2013) e.g. DPI motivated Dutch law: KPN investor call in May 2011

PHORM returns? 2006-7 illegal interception UK See my 2014 report for government of Korea on exactly this

Italy and UK 3 ad-blocking an example? http://www.bbc.co.uk/news/technology-35615430

“Customers should not have to pay data charges because of adverts

mobile ads should not access handset data without explicit consent,

owners should only see advertising that is relevant, interesting to them

rather than obtrusive and untargeted information”

Specific content monitoring could be interpreted as prohibited by the Regulation

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Relationship nationally & EU level with BEREC members Enforced by DPA, evidence gathered by comms

regulator? Note emerging US FTC-FCC re. Title II data

collection http://www.theverge.com/2016/2/16/11017934/n

et-neutrality-data-collection-fcc-title-ii

Is privacy enforcement by the Article29 Working Group?

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Self- and co-regulatory solutions need explicit legal act

New legislation required in a few extraordinary nations

assuming all stay in the EU/EEA that long….

UK position on government-mandated or “encouraged” opt-ins

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BEREC work to August 2016

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[EDRi evidence to BEREC] right to receive, seek and impart information (Article 11) the freedom to conduct business (Article 16) right to provide services in all 28 Member States (Article

15.2)Traffic management must be application-agnostic: class-based traffic management prevents the roll-out of

new services, harm competition, innovation, privacy, users congestion affects end-users’ choice if not properly

managed

“The Regulation must be read in light of the Charter of Fundamental Rights”

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Telekom’s Hottges’ start-up tax announcement right after adoption of net neutrality rules What will BEREC decide, as FRAND solution

apparently off the table? FRAND would have been easier for you? Or physical/logical separation? DOCSIS3 issue

Regulators must not allow the reclassification of online services and applications as “specialised

services”

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Leads to uncompetitive market consolidation between IAPs & Content Application Providers EU protectionism vs US OTTs? ETNO v. BEREC?

BEREC, NRAs and competition authorities should stop IAPs

making access to their customer base a new form of monopoly

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FUTURE

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affects individual users’ freedom to impart information;

a commercial practice; violates the Regulation’s ban on blocking and

throttling; TMM would not be temporary, as required by

Regulation; distorts competition and limits end-users’ choice.

Is it reasonable to interpret that zero-rating is prohibited?

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Free football Slovenia example (Ungerer warning 1999)

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The Register Accuses me (with Stanford Law Prof Barbara

van Schewick) of being a ‘slackacademic’ ‘charlatan’

Beware of trolls!

Virgin Media LTE 4G offer

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Zero rating only used outside EU?

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Costs vary enormously along with zero rating to exclude OTTs

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Telecoms regulators will focus on zero rating & net neutrality

There is a privacy issue that is omnipresent Monitoring traffic at network level I have written at length about this elsewhere: Particularly Phorm/BT secret trials in 2006/7

Snowden revealed Vodafone/BT cable interception PRISM programme of GCHQ/National Security Agency

Later violations in developing countries Finfisher software sold by UK defence contractor Hacking Team ‘assistance’ to LatAm governments

Net neutrality and censorship

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Focus on developing countries India, Brazil, Mexico, Russia

Mobile/Wifi as central network/access points Privacy as right infringed, more than free

speech Vital economic importance of expat VPN/VOIP

‘Remittance societies’ – inc. Bangladesh, Philippines, Pakistan, Sri Lanka

Very good work by LIRNE Asia, Ewan Sutherland and others

Further research into privacy, surveillance & net neutrality

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Net neutrality implementation EU/EEA/Brexit UK USA & Canada, BRICs & Mexico

Openness and mandated interoperability Social network ‘platform’ regulation

Privacy of data transfer/personal data stores

Co-regulation & NGO/civil society debateNN produced 4m US/2m India/500k EU

responsesRegulating Code Part II

‘Regulating Platforms’?

My future work

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Net Neutrality: Discrimination, Competition,

and Innovation in the UK and USAlissa Cooper and Ian Brown (2015)

ACM Transactions on Internet Technology, 15(1): 2-21http://dl.acm.org/citation.cfm?id=2700055