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More eye-rolling as Web inventor warns open Internet is doomed unless BEREC closes non-existent loopholes.
Having heard the histrionics over net neutrality on the part of telcos last week, this week saw the other side of the debate proffer some portentous proclamations about what might happen to the Internet unless regulators take an even tougher stance on how data traffic is treated.
None other than world wide Web inventor Tim Berners-Lee, Harvard law professor Lawrence Lessig, and Internet and Society professor Barbara van Schewick of Stanford law school on Thursday penned an open letter, casually titled: "four days to save the open Internet in Europe".
It’s Friday today, so I suppose there are only three days left now; oops. Anyway, the deadline referred to is 18 July, when responses to BEREC’s consultation on draft guidelines for how regulators should enforce the European Union’s net neutrality rules are due.
"The Internet has become the critical infrastructure of our time – for our daily life, for our economy, for our democracy. Strong guidelines will protect the future of competition, innovation, and creative expression in Europe, enhancing Europe’s ability to lead in the digital economy," the letter reads.
While the letter’s highly-acclaimed authors praise the EU for adopting net neutrality legislation, they warn that the guidelines for implementing the rules contain loopholes that if left open can be exploited to the detriment of innovation.
Unless the rules are tightened up, they argue, we are heading for a nightmarish dystopia where the only services that succeed online are the ones that can afford to pay telcos for preferential treatment of their traffic, such as prioritised delivery or zero-rating, where the data traffic generated by a specific service or category of services does not count towards the customer’s data allowance.
The authors of the letter are very clever people and I assume they read the guidelines, but the main problem is, these so-called loopholes appear tenuous at best and at worst, don’t exist.
The letter is also guilty of two oft-made mistakes: It assumes that people who use the Internet will use any service that has paid to prioritise its traffic. And it ignores the fact that Internet companies that can afford to pay to deliver their traffic more efficiently are already doing so, they’re just not paying for so-called ‘Internet fast lanes’.
Under BEREC’s proposals, network operators are banned from unfair blocking and connection-speed throttling, and the paid prioritisation of Web traffic. However, they are still allowed to provide so-called ‘specialised services’ like Internet TV and critical communications, provided it doesn’t ruin the performance of the public Internet for everyone else. Zero-rating has to be closely monitored on a case-by-case basis to ensure the practice does not harm competition or consumer choice.
According to Berners-Lee et al, the rules around specialised services, zero-rating, and traffic management need to be strengthened.
They call on BEREC to ensure that "the ‘specialised services’ exception cannot be used to create fast lanes for normal Internet content. And they should regularly review what qualifies as a specialised service – remember that in the not too distant past, everyday services like Web-based email or online video would have been seen as a specialised service!"
Well quite, which is perhaps why BEREC’s draft guidelines state that "a service that is deemed to be a specialised service today may not necessarily qualify as a specialised service in the future due to the fact that the optimisation of the service may not be required, as the general standard of IAS (Internet access services) may have improved."
The guidelines also state that it is on telcos to prove that a specialised service "is objectively necessary in order to meet requirements for a specific level of quality."
The letter is not done with specialised services yet though.
It claims that the draft guidelines contradict themselves because in one section they insist that specialised services do not interfere with standard Internet services, while in another section they allow for specialised services to share bandwidth with basic Internet access, admitting that it could degrade performance.
This is true, but it specifically relates to an end user who has signed up to a specialised service in parallel with a standard Internet access service, and the user must have been informed by their service provider that the latter could be affected by the former.
"Detrimental effects should not occur in those parts of the network where capacity is shared between different end-users," the guidelines state. They go even further, proposing that "the regulation does not allow specialised services if the network capacity is not sufficient to provide them in addition to any IAS."
It is also worth remembering that a specialised service could one day be a driverless car, or a connection that carries vital triage information from an ambulance to a hospital. If that data takes priority over a YouTube review of a new lip gloss, I can live with that.
As for zero-rating, the letter argues that leaving it up to regulators to evaluate zero-rated tariffs on a case-by-case basis disadvantages those Web users that don’t have the resources to state their case. Therefore, the letter calls for a "comprehensive, Europe-wide ban on harmful forms of zero-rating."
It doesn’t say who decides what constitutes harmful zero-rating though. Perhaps the regulators could decide what is harmful by evaluating zero-rating on a case-by-case…oh dear, I’m at risk of being trapped in an infinite loop of ambiguity, so I should think of something else.
We could try an online poll, maybe? Although there’s every chance that would result in ‘Harmfully McHarmface’ being crowned the most harmful thing ever to be zero-rated, or something.
The save-the-open-Internet letter also calls for telcos to be limited to applying traffic management to specific types of Internet traffic, such as video, only when traffic-agnostic methods are insufficient, which is fair enough, and in keeping with the principals of net neutrality.
However, in the same section, they warn that "the guidelines are less clear for traffic management in the absence of [network] congestion. This ambiguity could be misused as a loophole to allow carriers to discriminate in the name of addressing problems."
That certainly would be a loophole, except that the guidelines suggest that "where traffic management measures are permanent or recurring, their necessity might be questionable and NRAs (national regulatory authorities) should, in such scenarios, consider whether the traffic management measures can still be qualified as reasonable."
As previously mentioned, the letter also ignores the fact that Internet companies that can afford to deliver their traffic more quickly, are already paying to do so, they just happen not to be paying for ‘Internet fast lanes’.
Instead, the likes of Amazon, Google, Microsoft, Apple, and Facebook are busy building data centres, and either paying carriers for the fastest possible connection to the wider Internet, or deploying the required infrastructure themselves.
Companies that want their content delivered more quickly than their rivals’ can sign up to a content delivery network (CDN), physically caching data closer to the end user. This has been going on for years without people sending letters or launching petitions.
And when all is said and done, data centres, high-speed networks and CDNs are no guarantee of success for an Internet company. MySpace could invest in the most advanced technology available and still no one would use it.
Facebook, Microsoft, Amazon, and Google are deploying all this infrastructure for hosting and delivering their Web-based services, and what are people excited about? Snapchat, Periscope, Pokemon Go, Tinder, and the hundreds of other new apps I’m not cool enough to have heard of.
The consumer-led clamour for the next big thing will not go away if the EU guidelines on enforcing net neutrality – in their current form – come into force.
Last week, a 17-strong group of European telcos and vendors published a 5G manifesto that had the audacity to warn that investments in the most over-hyped generation of mobile technology in history could be delayed because the EU’s net neutrality rules are too strict.
Now people on the other side of the fence are wielding wafer-thin arguments of their own because they are concerned that the net neutrality rules are not strict enough.
One thing in all this is certain: the net neutrality debate will not end once these guidelines come into effect.
