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05/01/2023
Net Neutrality law: NOT business as usual
Prof Chris MarsdenUniversity of Sussex
@ChrisTMarsdenwww.chrismarsden.blogspot.com
05/01/2023
Background: Internet Science, RAND, ITC UK, WorldCom, start-ups
Net Neutrality: Towards a Co-regulatory Solution Bloomsbury, 2010
Net Neutrality: From Policy to Law to Regulation Manchester UP, 2016
Regulating Code (with Prof. Ian Brown) MIT Press, 2013
Network Neutrality: A Research Guide Handbook Of Internet Research
Internet Co-regulation Cambridge UP, 2011
Bibliography of Internet Law Oxford UP, 2012
05/01/2023
Prior art....
05/01/2023
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.
BREAKING NEWS…
05/01/2023
The Internet: for everyone
05/01/2023
Regulatory Toolkit: which mix of economics, engineering, behavioural & evolutionary neuroscience (‘nudges’ & groups), human
rights law?
05/01/2023
RFC 6973 Privacy Considerations for Internet Protocols RFC 7258 Pervasive Monitoring Is an Attack
‘process’ rather than a ‘technical’ document, impact on every strand of work the IETF does, including the development and revision of standards.
Ted Hardy (Google): “we’ve spent 20 years optimising for bandwidth and
speed, it’s time we also started optimising for privacy” RFC 7624, Confidentiality in the Face of Pervasive
Surveillance: A Threat Model and Problem Statement Working groups consider pervasive monitoring and provide
guidance for how such attacks could be mitigated.
IETF and Privacy from Government Attacks
05/01/2023
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
05/01/2023
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
05/01/2023
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
05/01/2023
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
05/01/2023
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?
05/01/2023
Illustration of user choice
05/01/2023
Has telecoms developed as fast and free?
UCL tests 1.125Tb/s You get 1/1,000,000th
of that?
Innovation in PC hardware
05/01/2023
Universal Service? UHDTV 15Mb/s
05/01/2023
Nothing in regulation is new
05/01/2023
BEREC work to August 2016
05/01/2023
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
05/01/2023
Regulatory capture?
05/01/2023
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?
05/01/2023
Welcome to the new boss….same as the old boss?
Consumers’ associations & civil society deeply suspicious of DT/Orange links to ministry and former bureaucrats
But they are all honourable men http://www.reuters.com/article/france-orange-
idUSL5N10968F20150729
05/01/2023
Four weeks’ consultation in July – what process amends guidelines?
“scarcely two months to evaluate and incorporation of potentially thousands submissions in several languages,
an extraordinary plenary then votes on the finished document” https://netzpolitik.org/2016/netzneutralitaet-wie-es-jetzt-weiter-geht/
Wrong –actually ONE month. London & Oslo, how’s your Slovenian?
05/01/2023
“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 are on holiday in July – good timing?
Or millions…?
05/01/2023
Astroturfed zero rating? TRAI refused to admit FBK poll on FreeBasics
05/01/2023
They hate their telcos Speeds are inadequate in most EU countries – esp.
compared to academic not-for-profit networks They hate surveillance
Five Eyes, Snowden, PRISM, Squeaky Dolphin They value privacy
Schrems, Digital Rights Ireland, PHORM-BT They distrust regulators
See telcos and security services as allies – and you?
Why are (some) people angry?
05/01/2023
But maybe BEREC remains invisible?
05/01/2023
[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”
05/01/2023
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”
05/01/2023
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
05/01/2023
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?
05/01/2023
Zero rating only used outside EU?
05/01/2023
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
05/01/2023
Free football Slovenia example (Ungerer warning 1999)
05/01/2023
Costs vary enormously along with zero rating to exclude OTTs
05/01/2023
[2016] Comparative Case Studies in Implementing Net Neutrality: A Critical Analysis of Zero Rating
SCRIPT-Ed 13:1 at http://script-ed.org/ [2015] Zero Rating and Mobile Net Neutrality,
Chapter 18, pp241-260 in Belli and de Filippi eds. ‘Net Neutrality Compendium: Human Rights, Free
Competition and the Future of the Internet’ Springer
Research articles on zero rating (in addition to Prof. van Schewick)
05/01/2023
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