1. (Pre-) history of European Network
Neutrality and Human Rights
Professor Chris Marsden
Council of Europe
Strasbourg
29 May 2013

2. 2 Check against delivery participants only
Book written
2008-9;
launched
January 2010
Second
edition
2016
100,000
downloads
first 2 months

3. The problem in a graphic

4. 1. Regulate traffic management - operators’ prioritisation of data flows.
minimum “Quality of Service” (QoS) standards
to mitigate certain negative effects of network-management policies,
such as the degradation of network performance.
2. Universal and reciprocal access to all resources connected to internet.
prevent the blocking of access to web sites by network operators
limiting access to content, applications and services
Measuring the performance of individual traffic flows originating from
specific applications may be a necessary part of any test configuration
for detection of blocking and throttling of applications.
BEREC, A framework for Quality of Service in the scope of Net
Neutrality, 2011, pp. 3-
4, http://berec.europa.eu/doc/berec/bor/bor11_53_qualityservice.pdf
CoE Background paper: “Public
debate encompasses 2 dimensions”

5. 5/29/20135
‘Negative neutrality’
or
Net neutrality ‘lite’

6. Glasnost initial results

7. 7
Net Neutrality Lite: EU approach
NN ‘Lite’ permits discrimination on speed and price for
new network capacity,
but insists existing networks do not discriminate ‘backwards’
i.e. do not reduce the existing levels of service.
‘Amazon Net Neutrality’ in September 2006
decided on acceptable minimal level of regulation
Future possible investment sharing,
but protects existing user levels.

8. Horizontal and indirect effects should be considered
Not just states, and not just companies obeying state law
It’s not just about blocking and filtering – easy cases
More interesting: closed high speed lanes
‘Managed Services’ – such as Deutsche Telekom IPTV
Accompanied by data caps set until 2017?
US refuses to permit this naked discrimination by corporates
Equivalence of access?
Leaving us on 1950s roads while they build toll motorways?
But net neutrality is also about
positive obligations on private actors
to uphold citizens’ right

9. State control replaced by private censors?

10. Telcos never liked the Internet
AT&T’s Jack Osterman reacting to Baran’s 1964 concept:
‘First it can’t possibly work,
and if it did,
damned if we are going to allow the
creation of a competitor to ourselves.’

11. Common Carriage not new
Began with obligations on inns/boats
Determined by public function of networks
Continued into modern networks
E.g. Railways and telegraphs
1844 Railway Regulation Act (UK)
Setting both emergency access (‘kill switch’)
AND Parliamentary trains
FRAND end-to-end access at set cost

12. Nothing in regulation is new

14. [1999] Pluralism in the Multi-Channel Television Market:
Suggestions for Regulatory Scrutiny
Council of Europe Human Rights Commission,
Mass Media Directorate, Strasbourg, France
MM-S-PL [99]12 Def2.
Net Neutrality Worries in Strasbourg?

15. the phenomenon of convergence in the form of
integration of programming and technical bottleneck
facilities – is driving this market phenomenon.
In the case of Sky and AOL, it is content allied to
control of the browser, the ‘first screen’;
in the case of Microsoft,
it is the browser operating system allied to the
distribution platforms of cable companies
Marsden for CoE Committee of
Experts on Media Pluralism [99] S.5.1

16. “AOL, WorldCom and other Internet companies again
urged federal authorities to bar cable operators striking
exclusive deals on high-speed Internet service
Internet providers want to be sure that
consumers will enjoy the same open access to their services
via cable networks that they now have over phone lines...”
24 May 1999: Section 5.1

17. So net neutrality is a debate that
began in the last millenium
Mergers: cable TV and broadband companies
AT&T/MediaOne and AOL/TimeWarner
Lessig and Lemley FCC submission:
‘The end of End-to-End’ (original May 1999)
Before ‘Code and Other Laws…’
Fear of abuse of freedom of expression

18. 1. AOL forced to interoperate video IM system
2. 3G almost infinitely delayed by rapacious
MNOs and Finance Ministries in 2000 auctions
3. NN imposed on US BabyBell mergers 2005/6
4. Apple controlled iTunes/AppStore from 2007
5. Net neutrality complaints in UK from 2001:
P2P and gaming apps degraded by BT and others
But the future was imperfect

19. Warned EC not to regulate Internet video content but
to watch bottleneck dominance
Advised Ofcom that MNOs would be non-neutral
Advised content actors to tell EC to ensure neutrality
Price and quality discrimination in next generation consumer
access to internet content: Beyond the ’net neutrality’ debate
Chris Marsden Jonathan Cave TR-503-CP 22 June 2007
Marsden/van Oranje for EC [2005]
Marsden/Cave for Ofcom [2006]
Marsden/Cave for Google et al [2007]

20. Classed as co-regulation
market actors and self-regulatory bodies maintain a constant
dialogue with regulators and consumers.
Preferable lighter-touch regime to government-funded
regulation and non-regulation of [Net Neutrality].
A light-touch stable regime provides investors with…
some certainty that carriers will not cause unwelcome
“surprises” that distort their business case.
Proposals that user-generated Web2.0 video & computer
games be charged on basis of QoS included in “surprises”.
P47: “[NN] should be primarily enforced via
reporting requirements on network operators”

21. Net neutrality permanent
feature of telecoms law
It is a debate which
has existed since 1999
will grow in importance as
Internet matures & service quality increases
demand on the network for
more attractive fixed and
mobile/wireless services.

22. Incidentally it’s not net neutrality...
It’s ‘the open Internet’
In both EC consultation and FCC Order

23. Net neutrality laws 2013
Country Legal Approach
Netherlands 15 May 2012 (S.7.4.a of Telecoms Law)
Slovenia 20 Dec 2012 (Art.203 ISPs may not throttle
commercially, charge for differentiated service)
Finland Universal access to ‘unfiltered’ Internet
Chile Universal access to ‘unfiltered’ Internet
United States FCC Open Internet Order Sept ‘11
Norway Co-regulation – 2009 agreement
Canada CRTC rules 2009 (not implemented?)
Japan, UK
France
Self-regulation unenforced
ARCEP ‘Ten Principles ‘

24. Kroes’ Champagne
Internet?

25. Private Internet Censorship
ISPs are not evil – they’re capitalists
Regulators are meant to regulate capitalism
To enable fundamental rights
As well as economic development/innovation
But telecoms National Regulatory Authorities
have no rights-based competences (or v.limited)
BEREC: rights-based NN issues outside their scope!

26. ISP as secret policemen?

27. Human rights and checkpoints?

28. We need rules of the road?

29. OPTIMISM

30. ISPs as ‘3 Wise Monkeys’ ECD Art.12-14
speak, see, hear no evil?

31. Losing liberty?
Deep Packet Inspection
trial without consent
ISPs important intermediary limited liability
Based on their wise monkeys role
Throttling on non-transparent basis
Removes 2000/31/EC Art.12-14 exemption
Freedom of expression vital to democracy
2005-7 Behavioural advertising
UK PHORM/BT
EC brings case to CJEU 2010-11
UK Government amends implementation of privacy law

32. European Data Protection Supervisor
October 2011
Concerned that traffic management would result in
exposure of users’ personal data
Including IP addresses
‘Opinion on net neutrality, traffic management and protection
of privacy and personal data’
http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Doc
uments/Consultation/Opinions/2011/11-10-07_Net_neutrality_EN.pdf

33. 1st Internet Science conference Brussels 10-11 April 2013
Professor Ziga Turk, minister in charge of Slovenian law
Alissa Cooper, member of FCC OIAC sub-group
Carl-Christian Buhr, advisor to Neelie Kroes
UK, French and Dutch technical engineering experts
Net neutrality will grow and grow

34. @ChrisTMarsden
C.Marsden@sussex.ac.uk
http://chrismarsden.blogspot.co.uk/
5500 regular visitors (esp. Washington and Brussels)
Comments? Questions?

35. Lemley and Lessig (2001) The End of End-to-End: Preserving the
Architecture of the Internet in the Broadband Era, UCLA L. REV. 48: 925
Marsden, C., et al (2006)Assessing Indirect Impacts of the EC Proposals
for Video Regulation, TR-414 for Ofcom.Santa Monica: RAND
Frieden, Rob (2006) Internet 3.0: Identifying Problems and Solutions to
the Network Neutrality Debate
Levinson, D. and Odlyzko, A. (2007) Too expensive to meter: The
influence of transaction costs in transportation and communication at
http://www.dtc.umn.edu/~odlyzko/doc/metering-expensive.pdf
Marsden, C. (2008) Net Neutrality: The European Debate 12 Journal of
Internet Law 2 pp1, 7-16 (Wolters Kluwer).
Marsden, C. (2010) Net Neutrality – Towards a Co-Regulatory Solution?
Bloomsbury Academic

36. Work with the ministries of justice and the interior
to draft legislation on net neutrality,
National Digital Council (CNN) submitted a report on the subject.
freedom of expression not sufficiently protected in French law
given development of filtering, blocking, censorship, throttling
Wording to be included in 1986 freedom of communication law
CNN suggests extend neutrality to all information access services
including search engines, social networks and mobile apps,
to guarantee access to information and to means of expression
in non-discrimination, fair and transparent manner
France 13/3/13: digital economy
minister Fleur Pellerin announced

37. Cesar Alierta, CEO Telefónica:
“Something is now working in the value chain and this is not a level
playing field.”
Franco Bernabè, CEO Telecom Italia:
“a couple of players dominate the market, stifling competition as
others struggle to develop a significant customer base”.
Randall Stephenson, CEO AT&T:
“Policy makers are going to have to be very clear about whether
they desire rapid adoption of the latest technologies,
or do they desire hyper-competition and the lowest prices possible
for the most basic of services.
Telcos declare war on Google and
Facebook: 25 February 2013

38. Norway UK Netherlands US
Measurement Self-declared with
verification?
Ofcom:
SamKnows
Consumers e.g.
Glasnost/Neubot/
BitsofFreedom
FCC: SamKnows
Technical advice Within co-
regulatory pact
Broadband
Stakeholder Group
co-regulation
NRA – advising
ministry
BITAG and OIAC
self/co-regulation
Legal position Co-regulation Not implemented
2009/136/EU
Implemented
2009/136/EU
Order December
2010, published
Sept.2011
Efficiency Very fast – first
mover
Very slow –
industry foot
dragging
Very fast –
legislative panic
Very slow – note
court delay
Lesson Act fast, get
stakeholder buy-in
Death by a 1000
cuts; deny-delay-
degrade;
significant political
damage
Mobile DPI and
blocking
prompted action –
legislative panic
Lack of
bipartisanship
causes trench
warfare
Toolsets/lessons for each approach