Will Neelie Kroes Defend or Destroy EU Net Neutrality?

I have a lot of time for Neelie Kroes, Vice-President of the European Commission with responsibility for the Digital Agenda. She's easily the most tech-savvy of the European Commissioners - although cynics would point out that's setting a low...


I have a lot of time for Neelie Kroes, Vice-President of the European Commission with responsibility for the Digital Agenda. She's easily the most tech-savvy of the European Commissioners – although cynics would point out that's setting a low bar. Sometimes, she's downright radical, as in this speech about copyright, delivered back in 2011:

let's ask ourselves, is the current copyright system the right and only tool to achieve our objectives? Not really, I'm afraid. We need to keep on fighting against piracy, but legal enforceability is becoming increasingly difficult; the millions of dollars invested trying to enforce copyright have not stemmed piracy. Meanwhile citizens increasingly hear the word copyright and hate what is behind it. Sadly, many see the current system as a tool to punish and withhold, not a tool to recognise and reward.

Similarly, as early as May last year she openly admitted that ACTA was probably dead, even while the European Commission was still stubbornly insisting the contrary:

We have recently seen how many thousands of people are willing to protest against rules which they see as constraining the openness and innovation of the Internet. This is a strong new political voice. And as a force for openness, I welcome it, even if I do not always agree with everything it says on every subject. We are now likely to be in a world without SOPA and without ACTA. Now we need to find solutions to make the Internet a place of freedom, openness, and innovation fit for all citizens, not just for the techno avant-garde.

Against that heartening background, I do nonetheless wonder whether Mrs Kroes really appreciates what true net neutrality for the Internet entails, and is prepared to defend it in Europe through legislation. Last week, the French newspaper Liberation published a major opinion piece by her, prompted by the decision by one of the largest ISPs in France, Free, to block Web ads by default on its FreeBox router. That's obviously problematic for many sites that depend upon advertising in order to generate revenue.

Mrs Kroes uses this as a jumping-off point to discuss consumer choice, online business models and net neutrality. Here's what she has to say on consumer choice in the English version of her article:

since 2009, EU law promotes the ability of consumers to access the full range of lawful online applications, content and services. But the public interest does not, in my view, preclude consumers from subscribing to more differentiated, limited internet offers, possibly for a lower price.

I agree: if people want to have an Internet connection running more slowly, or with a lower usage cap, in order to save money, they should be able to. But it is crucially important that these are full Internet services, not cut-down ones. Mrs Kroes goes on to talk about this issue of net neutrality in the following terms:

On net neutrality, consumers need effective choice on the type of internet subscription they sign up to. That means real clarity, in non-technical language. About effective speeds in normal conditions, and about any restrictions imposed on traffic – and a realistic option to switch to a "full" service, without such restrictions, offered by their own provider or another. Ensuring consumer choice can mean constraints on others – in this case, an obligation for all internet service providers to offer an accessible "full" option to their customers. But such choice should also drive innovation and investment by internet providers, with benefits for all. I am preparing a Commission initiative to secure this effective consumer choice in Europe.

Make no mistake: I am in favour of an open Internet and maximum choice. That must be protected. But you don't need me, or the EU, telling you what sort of Internet services you must pay for.

What's not clear here is what these "restrictions on traffic" refer to. If they mean throttling speed, or a data cap, then that's not a problem. However, for many telecoms companies they include the ability to block certain services – either at the Web level, for example Google's search engine, or lower down the stack, such as blocking the ports that Skype uses. Both of these would destroy net neutrality, which requires that every IP packet be sent in the same way, regardless of the content it carries, or the service it provides.

Changing the overall speed or data cap does not affect net neutrality; neither does a scheme that allows the users to prioritise certain kinds of traffic on a temporary basis (for example video streaming.) What must not be allowed is for ISPs to offer packages that permanently downgrade certain sites or certain applications.

The reason is not hard to see. Suppose, for example, an amazing new browser appeared on the scene from a small startup or open source group. If net neutrality were not mandated, it would be possible for the company behind one of the leading browsers to pay ISPs to ensure top-speed for customers using its browser, while others just take what they can get. The sponsoring company might even pay extra money to be passed on to the consumer in the form of lower prices for "special" budget services that can only use its browser.

Users might think this is a good deal, because they pay less. The ISPs will certainly think it is a good deal, because they are being paid for very little work. But as a result, the amazing new browser fails to gain any traction, and eventually withers away. The loser is innovation, the Internet and – ultimately – the consumer. The same issues would arise if wealthy publishers could could pay for priority delivery of IP traffic from their sites, making rivals' offerings seem slow in comparison: new entrants to the Web publishing market in particular would be penalised and innovation throttled.

In fact, this kind of discrimination is already happening with the mobile Internet, where Skype is frequently blocked by mobile operators, doubtless because it offers a cheaper telephony service than they do. The loss for consumers is evident.

The only way to prevent this kind of lock-in is to insist that full net neutrality be enshrined in EU law. That doesn't mean that lower-cost options can't be offered, only that they, too, must treat all IP packets equally, with no discrimination against particular sites, particular programs or particular services. And this isn't about "telling you what sort of Internet services you must pay for", but about ensuring that there is a level playing-field where all can compete fairly – something that increasingly isn't the case today.

Maybe this is precisely what Mrs Kroes has in mind when she speaks of "more differentiated, limited internet offers". But if instead she is happy to allow ISPs to break net neutrality, she will be responsible for a balkanisation of the Internet in Europe, where not all members of the public will see or be able to access all the same sites (note that this is quite separate from using filters for children's access, which is obviously fine.) It would be deeply ironic if a senior politician of the European Union were responsible for shattering the essential unity of the Internet in this way. Let's hope it doesn't happen.

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