Lights and darkness of the (EP) net neutrality reform

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Today the ITRE committee of the European Parliament approved a draft reform of Net Neutrality supported by Pilar del Castillo, a Spanish rapporteur (EPP) who is in charge of the Connected Continent Proposal.

The approved draft is more advanced than the proposal tabled by Commissioner Kroes in September 2013, a proposal which instead would have created a catastrophe for the Internet environment and the rights of citizens. However, even the proposal of Del Castillo presents numerous and relevant problems which are of concern for libertarians, pro-citizens and pro-competition stakeholders. Let’s try to enumerate the most important ones:

– discrimination: telcos are still able to discriminate online services by simply charging or differentiating the price of the Internet connectivity with the scope to favor a servicer over another. The problem already arose with the initial proposal of Kroes and specifically with art. 23(5) of the proposed regulation, and it has not been addressed yet. Thus, the  current version of the provision still empowers an ISP to establish a 2-tier Internet environment: a discounted Tier-1 Internet with selected online service, and a more expensive Tier-2 with all the rest. In order to avoid this problem, it should be clearly stated in the draft regulation that ISPs cannot differentiate the price of Internet connectivity unless there are objective justifications (i.e. quality, not just commercial deals between the ISP and a few online providers). Such an amendment had been proposed by Amelia Andersdotter, a Swedish MEP (Pirate Party), however it was not retained. A similar solution is currently envisaged by the Dutch net neutrality legislation.

– open character of the Internet: it is not sufficient for a legislator to say that we want an Open Internet, it should be clearly stated in writing what “Open Internet” really means. An amendment of Mrs. Trautman, rapporteur for S&D, tried to link some features of an Open Internet (enumerated in a recital) with the definition of Internet Access present in the draft regulation. The amendment was rejected and in any case it was not enough.  An “Open Internet” means that ISP cannot control, in any way, which and how their subscribers select online services in the Net. Therefore, not only blocking, throttling and bandwidth limitation should be forbidden: the principle must be more far-reaching and should cover any potential instrument which ISP can use to control the choices of the users (including any kind of price discrimination, as mentioned above). To achieve this scope, a clear legal clause, not a simple recital, should be inserted in the proposed regulation.

– what specialized services are: the current approved definition is an improvement with respect to the Kroes’ one, however it still leave the rooms for ISP to market as “specialized services” product and services which are normally accessible in the open Internet. This capability could allow a dominant ISP to create a 2-tier Internet. An amendment of Mrs. Trautman likely aimed at resolving this issue, however it was not sufficiently explained in the recitals.

Marjette Schaake, a Dutch liberal MEP very active in Internet matters, claimed that the current draft is very dangerous.

The draft approved today will now be submitted to the plenary session scheduled in Strasbourg  for April 3rd, 2014 and then be examined by the Council. However, the grey areas of the draft may create the basis for a rejection by the general assembly. Approving a draft which is still potentially dangerous for NN could be a risk for many MEPS which will be soon into elections (May 2014).

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