Net Neutrality: why it mattersDr Chris MarsdenSchool of Law, University of EssexSCRIPT 10th Anniversary, Edinburgh 8 June 2012

Internet and the University of Essex Universities invented Internet in 1968UK (UCL) early partner of US institutionsThough Norway was first international link

Essex 9th in UK for Research (2001-8 RAE)Top 20 global ‘universities under 50’ With UEA, Sussex etc.A Robbins university founded 1964Wivenhoe just outside ColchesterSignificant interaction with BT Labs (nearby)Notably on computing, telecoms and users

Where? Wivenhoe near Colchester

Wivenhoe Park painted by Constable

Essex as a European University

Stansted Airport 33 milesLondon by train 47 minutes

• The future of the Internet• The future of European

communications policy• European consumers and citizens• Monopoly and protection of

fundamental rights• Competition

What matters?

Back in 2007…

04/09/20238

04/09/20239

‘Negative neutrality’

or

Net neutrality ‘lite’

Because we get it wrong on all these levels:1. We generalize from the particular2. We pretend competition solves the problem3. We pretend to be technologically neutral4. We regulate asymmetrically5. We don’t provide effective protection for

consumers6. We don’t protect freedom of expression7. We don’t understand Internet innovation

NN as microcosm of European telecoms policy failures

• Standard 1990s answer to 1980s monopoly problem

• We are still in some Chicago School fantasy• ‘American problem’ – so why US solution;-)• All ISPs have incentives to block • file-sharing and VOIP• Naked DSL anyone?• Why do we still have voice telephony?

Competition is not the answer

Playing together?

Ofcom: ‘no formal complaints’

• BEREC (2010) Response to the • European Commission’s consultation on the open

Internet and net neutrality in Europe, • BoR (10)42 • Charlie Dunstone, Chairman, TalkTalk:• “We shape traffic to restrict P2P users.

I get hate mail at home from people when that means we restrict their ability to play games.”

Ofcom International Conference, Nov 2006

“I’ve got 2 people that have said they’re going to kill me as a result of not allowingthem to play certain games. From our point of view, it’s not about security, it’s about trying to figure out what type of traffic it is.”

• Generalising from the particular• Five MNOs in UK – one of which (3) acts for

consumer interest• Swedish mobile cartels• Berlusconi created specific Italian issues• Romania has fibre and 450MHz 4G• UK has no 4G nor any sign of it!

One size does not fit all

• Mobile is not fixed!• Cable is not DSL• Why pretend that we can solve this in

a platform-neutral manner• Architecture matters!

Technological neutrality?

• In whose definition?• Third pipe• Or as Martin Cave explained in 2009, 1.5 pipes!• Two competing wholesale fixed

networks

Competition as solution

Or in a picture…

• Fixed incumbent regulated as SMP• But problem is not retailers of that

wholesale network• Why don’t we ex ante regulate?• NOT cable monopolist• NOR satellite/ISP combine• Must carry• Due prominence

Asymmetrical regulation

• What’s the problem?• ‘Anecdote’ is not evidence• Nor is ex post an effective remedy• Ofcom in trouble on transparency and

switching• Transparency like mobile pricing?• Switching like: let them eat cake?

Consumer law and redress

• I have made an extended argument for prosumers to be protected

• Paper at ECPR Regulation & Governance

• Exeter 27 June• Book MIT Press 2013, with Ian Brown

Prosumer Law

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ISPs as police?

• Value chain analysis• Problem – innovation at content-app-

services level• Providing fibre is not innovation by ISPs!• So whole basis of policy is flawed• Do telecoms regulators understand the Internet?• Are politicians ignorami?

What innovation?

• ‘Internet’ is unrestricted• Restriction is censorship• Ed Vaizey’s nonsense comments• Tim Berners Lee tells the truth• La Rue (UNHRC) and Akdeniz (OSCE)• It’s the right to communicate

Citizens’ rights

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