Yesterday I wrote that I hoped to post here my submission to the important EU consultation on net neutrality that is currently open. However, there have been some important developments in this area that need to be covered first.
First, La Quadrature du Net, which I mentioned yesterday, has written a stinging response to the separate consultation that BEREC, the Body of European Regulators of European Communications, is running until the end of this month on the report it produced, discussed yesterday:
La Quadrature du Net publishes its non-answer to the EU body of telecoms regulators' (BEREC) consultation on Net Neutrality. It is not time for yet-another consultation on the EU Commission's failed "wait-and-see" policy aimed at letting telecom operators take control of the Internet by discriminating communications. The only way to protect a free Internet as well as freedoms and innovation online is to clearly enact and protect Net Neutrality in EU law.
Well, I think that makes its position pretty clear: net neutrality enshrined in EU law, now.
Interestingly, the same page includes links to three countries that have already done that: Chile, the Netherlands and Peru. That's crucially important, because it gives the lie to the argument that it simply isn't possible to enact net neutrality through legislation. As I mentioned yesterday, the EU and UK government prefer to push for "voluntary" agreements – like the one announced here:
Today leading internet service providers (ISPs) are signing a voluntary code of practice in support of the open internet.
The code commits ISPs to the provision of full and open internet access products and confirms that traffic management practices will not be used to target and degrade the services of a competitor.
This initiative builds on the transparency code of practice published in 2011 which ensures that clear, understandable and comparable information on traffic management practices is available to consumers.
The eagle-eyed among you will have spotted a number of potential weasel-words in there. To understand what this means in practice, we need to take a look at the details of the so-called "Open Internet Code of Practice" [.pdf], which begins:
This voluntary code of practice puts forward a set of commitments agreed by signatories in support of the open internet. They were developed by signatories following discussions with government, the regulator, industry and broader stakeholders and building on Communications Minister Ed Vaizey MP's statement in 2011 that the concept of an open internet should be guided by three principles:
users should be able to access all legal content
there should be no discrimination against content providers on the basis of commercial rivalry; and
traffic management policies should be clear and transparent.
Although this invokes the "open Internet", what it describes is not net neutrality, which is simply that there should be no discrimination between IP packets. Instead, the three principles talk about discrimination of content on the basis of commercial rivalry. It says nothing about discrimination based on what IP packets contain, especially if they have nothing to do with content providers.
Indeed, this early reference to content is a hint of what is to come in the Code:
The way we use the internet is changing. The internet is increasingly being used by consumers as a means to access video based services and the uptake of these relatively high bandwidth services is in turn driving the rapid growth in overall traffic levels. Meanwhile significant investments are being made in new fixed and mobile high speed access networks which will, in turn, continue to drive traffic volumes across the internet.
The potential to provide managed services that would enable a specific piece of content, service or application to be delivered without risk of degradation from network congestion is one option open for consideration by Internet Service Providers (ISPs).
Note that the first thing that is mentioned are "video-based services", and that these "high bandwidth services" have to be "managed". Going on, the Code refers to Ofcom's earlier report on net neutrality:
In this document Ofcom recognised the positive role that traffic management can play in the internet's success, increasing the efficiency with which operators manage network capacity. It also acknowledged that traffic management could be used to support new innovative managed services that will be of benefit to consumers, such as high quality IPTV services, prioritised over other traffic.
Again, there's that mention of "high quality IPTV" services that would be "prioritised over other traffic": precisely what net neutrality is not.
This lays bare what the Code of Practice is really about, and why it is problematic. The major ISPs who have signed this Code essentially want to take over from traditional broadcasters by offering IPTV among other services, so that they can enjoy the kind of profits content companies make, rather than the lesser gains that companies providing Internet plumbing can expect. But to do that, they think they need to prioritise that IPTV traffic over everything else – over what you and I quaintly call "the Internet."
Of course, ISPs and the UK government know that the increasingly-powerful Internet industry is against this, because it means that the truly neutral IP sphere will be turned into a second-class citizen, and the scope for the kind of untrammelled innovation that has transformed business and society over the last two decades will be greatly reduced. For the Internet to continue to flourish, we need true net neutrality, where all IP packets are treated equally. To head off the threat from Internet companies, not to mention those tiresome advocacy organisations that represent the public, the new Code of Conduct tries to make it sound as if the old steam-powered Internet will be just fine under the new regime.
Here is the start of the Code itself:
Signatories to this code support the concept of the open internet and the general principle that legal content, applications and services, or categories thereof should not be blocked. Whilst products that offer full internet access will be the norm, in order to support product differentiation and consumer choice, ISPs retain the ability to offer alternative types of products. In instances where certain classes of legal content, applications and/or services are unavailable on a product signatories to this code will:
i. Not use the term "internet access" to describe or market such products;
ii. Ensure that any restrictions are effectively communicated to consumers, building on the commitments made in the transparency code of practice.
The first part, that stuff shouldn't be blocked, actually means nothing, since the Code later goes on to quality the statement that stuff shouldn't be blocked by adding that's the case unless it's the kind of stuff that has to be blocked. Moreover, net neutrality is more about subtle discrimination, not outright blocking.
The next bit is interesting: the Code admits that products that undermine net neutrality will be offered, but that will be OK because they won't claim to offer "Internet access". Well, how will that work out in practice? As noted above, what the Code is really talking about is services like IPTV, which consists of connecting your shiny new-style digital TV to your router, and then letting the ISP prioritise IP traffic to the TV.
Now, promising not to call this service "Internet access" is hardly a massive concession, since it will obviously be sold as IPTV or similar anyway. But look at what is happening at the router. The IPTV traffic will be prioritised, so that other services accessed via PCs or tablets or whatever will be degraded. The Code is being scrupulously observed, but the end effect is that net neutrality has been destroyed, and old-style Internet services discriminated against.
The next section is even more blatant about its intentions:
Signatories to this code realise the positive impact some forms of discrimination could have in supporting innovation and choice and retain the right to develop and offer managed services. In recognising however that some forms of discrimination may be harmful, signatories undertake that traffic management will not be deployed in a manner that targets and degrades the content or application(s) of specific providers. Signatories also recognise the importance of best efforts internet access being a viable choice for consumers alongside any managed services that might be developed and offered.
This goes so far as to dance on the grave of net neutrality, saying that discrimination is actually a jolly good thing, because it supports innovation (like turning the Internet into TV). Realising that this is a bit of a giveaway, the Code adds quickly that "signatories undertake that traffic management will not be deployed in a manner that targets and degrades the content or application(s) of specific providers." But that mention of "specific providers" actually emasculates that apparent concession. For example, it would allow VoIP to be degraded to the point of uselessness provided all VoIP services were so treated – see? No discrimination against "specific providers" at all....
The final sentence is really adding insult to injury. After claiming that discriminatory routeing is just great, it adds that "best efforts internet access" - again, that's the kind you and I thought was the only kind – must be a "viable" choice. "Viable" means you can just about use it if you really have to; it certainly doesn't mean treated as an equal citizen alongside those wonderful new managed services.
Then, as a final sop to transparency, the Code bravely insists:
Signatories support the provision of clear and transparent traffic management policies as outlined in the voluntary code of practice for traffic management transparency.
So buried somewhere in the terms and conditions there will be an some reference to traffic shaping and/or preferential treatment for certain IP packets, probably dressed up as "product differentiation and consumer choice"...
Today's new Code is a timely reminder why voluntary approaches to net neutrality just don't work: they are always framed in such a way as to allow harried politicians to claim that the "open Internet" and net neutrality are protected, but with enough subtleties and loopholes as to make them useless in practice.
While ISPs and mobile operators are allowed to evade their net neutrality responsibilities, they won't bother coming up with solutions to undeniably important issues like congestion and reliable delivery of high-throughput streams, preferring instead to sacrifice that boring old "best efforts Internet" on the altar of progress – and commerce.
Since the UK government is manifestly on the side of the telecoms/ISPs against the new Internet industry – refuting allegations that it is completely in thrall to the latter – to say nothing of the public, the only way that true net neutrality will be guaranteed in this country is for the EU to bring in a directive requiring it. Since it seems that the net neutrality debate is beginning to ignite again, I'll hold off from posting my submission to the EU until later in the consultation period so that I and others can reflect further developments.