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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