Electronic Communications Law JUS5640 - Autumn … Communications Law JUS5640 - Autumn 2011 . Agenda...

Network neutrality

Tobias Mahler NRCCL, University of Oslo

Electronic Communications Law JUS5640 - Autumn 2011

Agenda

Net neutrality

• Traffic management

• Rationale for adopting NN

Principles and rules

• United States

• Council of Europe

• European Union

• Norway

TRAFFIC MANAGEMENT AND NET NEUTRALITY

EU commission on traffic management COM(2011) 222 final

“It is widely accepted

• that network operators need to adopt some traffic management practices to ensure an efficient use of their networks and

• that certain IP services, such as for instance real-time IPTV and video conferencing, may require special traffic management to ensure a predefined high quality of service.”

EU commission on traffic management COM(2011) 222 final

“However, the fact that some operators, for reasons unrelated to traffic management, may

• block or degrade legal services (in particular Voice over IP services) which compete with their own services

• can be considered to run against the open character of the Internet.”

Blocking

Blocking services or websites on the internet

• making it difficult to access these;

• outright restricting.

Classic example

• Mobile internet operators, blocking voice over internet protocol (VoIP).

Throttling

A technique employed to manage traffic and minimize congestion,

• may be used to degrade (e.g. slow down) certain type of traffic and

• so affect the quality of content,

• such as video streaming provided

• to consumers by a competitor.

Positive & negative NN

“Positive” NN

charging more for better access (e.g., NGNs)

“Negative” NN

throttling, degrading or blocking .

Chris Marsden, NN, p29

Conceptual origin of NN

• “a maximally useful public information network aspires to treat all content, sites, and platforms equally”

• Tim Wu, “Network Neutrality, Broadband Discrimination” Journal of Communications and High Technology Law, 2: 141 (2003)

The end-to-end principle

Innovation without permission

Web 2.0 VoIP P2P RSS

NN Dystopia

UNITED STATES

USA, Federal Communications Commission (FCC)

• Internet Policy Statement Principles, 2005;

• Preserving the Open Internet, Final rule, 2011;

• see also

– The Open Internet Notice of Proposed Rulemaking (NPRM), 2009

– Preserving the Open Internet Report and Order, 2010

FCC, Internet Policy Statement Principles, 2005: Consumers entitled to

Access the lawful content of their

choice.

Run applications and use service of their choice,

• subject to the needs of law enforcement

Connect their choice of legal devices that do not harm the

network

Competition among network

providers, application and

service providers, and content providers.

Preserving the Open Internet (Final Rule, 2011), overview

• All providers

• disclose network management practices i. Transparency;

• Fixed broadband providers

• not block content, applications, services, devices

• mobile broadband: not block web or competing apps. ii. No blocking;

• Fixed broadband;

• lawful network traffic.

iii. No unreasonable discrimination.

Transparency (FCC Final Rule, 2011)

[All providers:]

Fixed and

mobile broadband providers

must disclose

the network management

practices,

performance characteristics,

and terms and conditions

• of their broadband services;

No blocking (FCC Final Rule, 2011)

Fixed broadband providers may not

block

• lawful content,

• applications,

• services,

• or non-harmful devices;

mobile broadband providers may not

block

• lawful Web sites,

• or block applications that compete

• with their voice or video telephony services

No unreasonable discrimination (FCC Final Rule, 2011)

Fixed broadband providers

may not unreasonably discriminate

in transmitting lawful network

traffic.

US cases

•Blocking rival VoIP censored by FCC

•FCC case, 2005

Madison River

•Throttling P2P applications

•FCC order based on Internet Policy Statement

•Comcast Corp. v. FCC. United States Court of Appeals for the District of Columbia, 2010: FCC lacks authority (600 F.3d642)

Comcast

•currently challenging FCC final rules

Verizon

NORWAY

Page 22

The Norwegian guidelines

• Principle 1: The Internet users are entitled to an Internet connection with a predefined capacity and quality. o Transparency o Specialized services

• Principle 2: The Internet users are entitled to an Internet connection that enables them to

‒ send and receive content of their choice ‒ use services and run applications of their choice ‒ connect hardware and use software of their choice that do

not harm the network.

• Principle 3: The Internet users are entitled to an Internet connection that is free of discrimination with regard to type of application, service or content or based on sender or receiver address. o Reasonable traffic management

Norwegian guidelines for net neutrality, Feb. 2009

COUNCIL OF EUROPE

CoE Internet Governance Principles, Principle 9 (2011)

Users should have the greatest possible access to

• Internet-based content,

• applications and

• services of their choice,

• whether or not they are offered free of charge,

• using suitable devices of their choice.

Any

traffic management measure

or privilege should be

• non-discriminatory,

• justified by overriding public interest, and

• must meet the requirements of international law on the freedom of expression and access to information.

EUROPEAN UNION

Overview

• “Commission Declaration on Net Neutrality,” Directive 2009/140/EC, the Better Regulation Directive.

• Communication from the Commission: The open internet and net neutrality in Europe, 2011.

• BEREC Draft Guidelines on NN and Transparency, 2011.

COMMISSION DECLARATION ON NET NEUTRALITY

• [high importance ...]

[... ] preserving the open and neutral character of

the Internet,

• to be promoted by national regulatory authorities

• [Article 8(4)(g) Framework Directive]

enshrine net neutrality as a policy objective and

regulatory principle

• [Articles 20(1)(b) and 21(3)(c) and (d) of the Universal Service Directive]

& strengthening of related transparency

requirements

• to prevent the degradation of services and the hindering or slowing down of traffic over public networks

• [Article 22(3) of the Universal Service Directive

& creation of safeguard powers for NRAs to

prevent

Framework Directive, Article 8(4)(g)

The [NRAs] shall promote the interests of the

citizens of the [EU] by:

• …

• (g)

(g) promoting the ability of end-users to

• access and distribute information or

• run applications and

• services of their choice

Minimum QoS: Article 22 (3) Universal Service Directive

3. In order to prevent

• the degradation of service and

• the hindering or slowing down of traffic over networks,

• Member States shall ensure that

NRAs are able to set minimum quality of service requirements

• on an undertaking or undertakings providing public communications networks.

• [After consulting the commission.]

Transparency: Article 21(3)(c) Universal Service Directive

• (c) inform subscribers of any change to conditions limiting access to and/or use

• of services and applications,

• where such conditions are permitted under national law in accordance with Community law;

Member States shall ensure that

[NRAs] are able to oblige undertakings

providing public electronic

communications networks and/or public

electronic communications

services to:

Transparency: Article 21(3)(d) Universal Service Directive

• (d) provide information

• on any procedures put in place by the provider

• to measure and shape traffic

• so as to avoid filling or overfilling a network link,

• and on how these procedures could impact on service quality.

Member States shall ensure that

[NRAs] are able to oblige undertakings

providing public electronic

communications networks and/or public

electronic communications

services to:

See also: Transparency: Article 20(1)(b), Universal Service Directive

The contract shall specify in a clear, comprehensive and easily accessible form at least: (b) the services provided, including in particular, — whether or not access to emergency services and caller location information is being provided, and

any limitations on the provision of emergency services under Article 26,

— information on any other conditions limiting access to and/or use of services and applications, where such conditions are permitted under national law in accordance with Community law,

— the minimum service quality levels offered, namely the time for the initial connection and, where appropriate, other quality of service parameters, as defined by the national regulatory authorities

— information on any procedures put in place by the undertaking to measure and shape traffic so as to avoid filling or overfilling a network link, and information on how those procedures could impact on service quality,

— the types of maintenance service offered and customer support services provided, as well as the means of contacting these services,

— any restrictions imposed by the provider on the use of terminal equipment supplied;

Citizens’ Rights Directive 2009/136/EC, recital 28

• End-users should be able to decide what content they want to send and receive,

and which services, applications, hardware and software they want to use for such purposes, without prejudice to the need to preserve the integrity and security of networks and services. A competitive market will provide users with a wide choice of content, applications and services.

• National regulatory authorities should promote users’ ability to access and distribute information and to run applications and services of their choice, as provided for in Article 8 of Directive 2002/21/EC (Framework Directive).

• Given the increasing importance of electronic communications for consumers and businesses, users should in any case be fully informed of any limiting conditions imposed on the use of electronic communications services by the service and/or network provider.

• Such information should, at the option of the provider, specify the type of content, application or service concerned, individual applications or services, or both. Depending on the technology used and the type of limitation, such limitations may require user consent under Directive 2002/58/EC (Directive on privacy and electronic communications).

Transparency

• Enhances the ability of users to make informed choices;

• Necessary but not sufficient

– Competition?

– Ability to switch?

– Will it result in an open Internet?

BEREC Guidelines

BEREC Guidelines

SUMMARY

Summary

• For a summary, please see

• Net neutrality by Frode Sørensen