EU Proposal Adopts Net Neutrality Principles for 'Open Internet,' But Would Create Fast Lanes

TO GO WITH Afghanistan-Health-Technology by Joris Fioriti

Nurses from The French Medical Institute for Children speak to c
TO GO WITH Afghanistan-Health-Technology by Joris Fioriti Nurses from The French Medical Institute for Children speak to colleagues in other regions via a 'tele-conference link' in Kabul on May 13, 2012. Telemedicine is being used in Kabul to help curing children from remote areas in the northeastern and central part of Afghanistan. More than 5500 consultations have been done this way, saving many lives. AFP PHOTO/Bay ISMOYO (Photo credit should read BAY ISMOYO/AFP/Getty Images)

A draft agreement released by the European Commission has many net neutrality advocates concerned that a loophole will destroy net neutrality in Europe by creating Internet "fast lanes."

In its public proposal, the European Commission would apply the fundamental principles of net neutrality to all broadband Internet services providing access to the Open Internet in Europe's single digital market: no blocking or throttling of legal online content, apps or services. All bits traveling over the networks the EU defines as the Open Internet would be treated equally. Prioritization, "degradation or discrimination" would all be be banned.

The sticky wicket lies in the creation of "specialized services," like "IPTV, high-definition videoconferencing or health care services like telesurgery." According to the EC's proposal, such services "use the Internet protocol and the same access network but require a significant improvement in quality or the possibility to guarantee some technical requirements to their end-users that cannot be ensured in the best-effort open Internet."

It's these specialized services that are raising red flags for advocates.

"'Specialized services' has always been a potential problem," Harold Feld, senior vice president at Public Knowledge, said in an interview. "On the one hand, regulators hate to ban anything completely. The argument is always that there might be some wonderful life-saving medical application or super awesome wonderful job-creating application that only works with prioritization. On the other hand, regulators also recognize that the exception can effectively nullify net neutrality if any application or content can simply be declared a 'specialized service.'"

The proposed rules would allow "zero rating," or sponsored data for some applications and services, which does not co-exist with strong net neutrality laws worldwide. Much of the flak that Facebook's has faced around the world stems from this approach.

Some analysts, however, see a role for specialized services separate from the Internet the public uses.

"Some services require higher quality of service guarantees or lower latency," said Eli Dourado, director of the Technology Policy Program at the Mercatus Center at George Mason University. "You wouldn’t want your voice calls to degrade, your video game to lag, or God forbid, your telesurgery to stutter because someone on the network is bulk downloading files using Bittorrent. Application-specific prioritization is a reasonable way to ensure that network resources are used more efficiently."

In Dourado's view, the harm that Open Internet regulations seek to address is mostly hypothetical, but if such rules pass he supports explicitly allowing companies to provide services with different characteristics, as the EU has done. As with so many regulations, the devil will be in the finer details of the regulation. "Application of the 'specialized service' definition is always very concerning," said Feld. "The FCC, in its 2015 net neutrality order, did a lot to try to tighten up the definition so that providers couldn't simply evade the no-prioritization rule by using the magic words 'managed service,' the U.S. version of 'specialized service'."

Jens-Henrik Jeppesen, director of European affairs for the Center for Democracy & Technology, said in an interview that the agreement's text "has evolved through torturous negotiations between member states and Parliament." He cautioned that no one has seen the final text, only a fact sheet from the commission.

The Center for Democracy and Technology is open to the idea of specialized services separate from the public Internet, in theory, but is reserving judgment before it sees the final proposal to support or oppose the EU approach.

"While some net neutrality advocates are opposed to the concept on principle, CDT has consistently argued that ISPs and operators should have flexibility to innovate and experiment with new services on the condition that they do not harm the quality of the open Internet, and that they are not sold or used as a substitute for it," blogged Jeppesen. "The Regulation attempts to reflect these limitations, but CDT is troubled by reports that the exception for specialized services may be too vague and open-ended to maintain a clear distinction between Internet access service and specialized services, and ensure that the provision of such services does not leave the open Internet unharmed."

We've seen this movie before, but it may end differently this time. In the spring of 2014, a controversial Federal Communications Commission proposal that would have allowed broadband Internet service providers to charge for premium access to fast lanes touched off a raging controversy over regulation -- which eventually led to the enactment of far stronger Open Internet rules in the United States than just about anyone expected.

Unless there's a similar popular outcry, the European Parliament and the European Union Council are likely to formally approve the proposal -- which includes a crowd-pleasing announcement about the elimination of roaming fees by 2017 -- and see the new net neutrality rules go into effect by the end of April 2016.

The EU's eventual decision will influence regulatory decisions elsewhere. As telecommunication companies around the world move to create IPTV networks, the "Internet" the public has access to in many countries could end up looking like TV in the 20th century: channels of videos and approved software delivered to glowing screens, not a World Wide Web. The difference will be that the screens would be on billions of smartphones, not televisions, with personalized ads targeted to someone's demographics, search history, shopping habits and social data. How access to the Internet is regulated, monitored, shaped or throttled will have consequences for commercial, civic and social life everywhere.