EU: Public Consultation on “Open Internet”

Network neutrality (also net neutrality, Internet neutrality) is a principle that advocates government regulation of Internet service providers[1], preventing ISPs from restricting consumers’ access to networks that participate in the Internet. Specifically, network neutrality would prevent restrictions on content, sites, platforms, types of equipment that may be attached, and modes of communication. Network owners can’t interfere with content, applications, services, and devices of users’ choice and remains open to all users and uses.[2][3][4]

— Wikipedia, Network Neutrality

Here in Canada I first became aware of the idea of Net Neutrality when I began the StopUBB blog. Because I believe in free speech, I oppose censorship, and since the Internet has become so terribly important to us all, we all need to be able to access it.   Net Neutrality seems like a no-brainer to me, but those who want to harvest the Internet don’t agree.

Canadians have not been well served by out telecom regulator, CRTC, which blithely granted permission to the legacy carrier, Bell, to utilize Deep Packet Inspection without even a pretence of oversight.  Although our Canadian Privacy Commissioner warned about it, but most people didn’t hear about it, or understand it.  Most of us still don’t realize that everything Canadians post to the Internet was legally opened to the scrutiny of a private corporation when the CRTC essentially handed Bell the keys to our online privacy.

This ruling gave Bell the legal wherewithal to use its technical DPI capability to look at everything we put online that is not encrypted.

That means they can read our unencrypted email.  Bell employees with access can look at the DMs we send on Twitter or Identica, or what we believe to be “private chats” on Facebook or forums.  They can peruse the “private” baby pictures we post to Flickr, or home movies we post on YouTube, even when set as “private”.

Most of us don’t use encryption because we don’t know how and/or we don’t understand why it’s necessary.

EU Public Consultation

Currently the EU is looking at ISPs and Net Neutrality, by holding a public consultation.  Just to see, I took a look at it, and discovered that the questionaire was huge.  Cumbersome.  It asks the same kinds of questions over and over again, possibly in an effort to get people to eventually provide the desired answers.

Or perhaps the goal is to reduce the number of responses that will have to be dealt with.  If people start the thing but leave half the answers blank, there will be a lot of room to fiddle with the results.

In some ways, it looks very much as though this questionaire is really an instrument of propaganda.  It utilizes biased phraseology and presupposes consumer privacy invasion is both necessary and beneficial.  The questions posed don’t exactly support “Net Neutrality” or an “Open Internet.”

Just Do It!

Everyone in the EU has an opportunity to submit their own answers to this consultation.

If you live in the EU, I very much urge you to fill in this questionaire, so you don’t end up under a regime like ours.

It seems I have a pretty good grounding in all of this, so I thought I would share my answers with you here.  Since I have this blog licensed directly into the Public Domain, please feel free to make use of any of my answers that may help you fill this epic out.

Public consultation on specific aspects of transparency, traffic management and switching in an Open Internet

Questionnaire on one page

Question 1:

a) Please provide a brief description of your interest in open Internet issues.

Answer:  Free speech and a free exchange of ideas is important both for healthy culture and democracy. the protection of privacy, including anonymity is also important for the security of citizens.

b) Please provide your name, postal and e-mail address and if you wish, your telephone number for any questions on your contribution.

[On this I used my name and email address; all you need do is include your own name]

c) In which Member State(s) do you live?

Answer:  Canada … not a member state; but Canada has already started down the slippery slope and I hope to warn the UK against this dreadful error

Does your answer to this question (a,b or c) contain confidential information?

Answer: No

1. Traffic management

Question 2:

Please provide your views on the following ways/situations where traffic management may be applied by ISPs.

Are traffic management measures:

a) applied to deliver managed services (e.g. to ensure a guaranteed quality of service for a specific content/applications)

Answer:  problematic
If this means interfering with other packet traffic to give preferential treatment to some, it is wrong.

b) taking into account the sensitivity of the service to delay or packet loss

Answer: problematic
Neutrality means that all Internet traffic is treated neutralluy … equally. Preferential treatment is inappropriate.

c) used to implement or manage compliance with the explicit contractual restrictions (e.g. on P2P or VoIP) of the Internet access product accepted by the user

Answer: problematic
Contractual agreements between users and 3rd party services are simply none of the ISPs business. If the ISP is providing such services it ought to fall under conflict of interest.

d) targeting types/classes of traffic contributing most to congestion

Answer: problematic
This is not net neutrality, this is the carrier choosing which customers/traffic to discriminate against.

e) targeting heavy users whose use is excessive to the extent that it impacts on other users

Answer: problematic
If heavy users use is impacting on Internet service, the ISP needs to invest in infrastructure. No discriminatory traffic management processes are appropririate. Until the ISP improves the infrastructure, the only appropriate response would be across the board slow downs.

f) applied during busy times and places, when and where congestion occurs

Answer: problematic

This appears to continue the theme of targetting specific Internet traffic.   When and where congestion *actually* appears (not where the ISP alleges it will appear) in conjunction with g) affecting ALL applications/content providers in the same way (application-agnostic) would be acceptable. Targetting specific traffic is always inappropriate.

g) affecting all applications/content providers in the same way (application-agnostic)

Answer: Appropriate

All Internet traffic should be treated equally. (application-agnostic)

h) affecting (similar) applications/content providers of the same category in the same way

Answer: problematic

all traffic should be treated equally

i) used, without other grounds, against services competing with the ISP’s own services

Answer: problematic

Are you serious? Is an explanation actually required to explain that ISPs should not be allowed to discriminate against its competitors? See: Conflict of Interest, Anti-Trust

j) implemented at the full discretion of the ISP

Answer: problematic

Full discretion of the ISP is legally far too both broad and far too dangerous. What about human rights? Human Rights don’t just stop because we’re on the Internet.

k) other differentiation criteria (please specify)

Answer: The very same human rights citizens enjoy in the real world should be enjoyed on the Internet. Citizen privacy should never be legally breached without a warrant, certainly not by a wholly unaccountable corporate entity or quasi governmental service.

Real Net Neutrality means ISP accountability.

Does your answer to this question (a, b, c, d, e, f, g, h, i, j or k) contain confidential information?

Answer: No

1.2 Traffic management and privacy issues

Question 3:

Where the user’s consent is required for traffic management measures, particularly where such measures might entail access to and analysis of certain personal data by ISPs, please explain how (e.g. in which format) this consent should be sought by the ISP, what prior information needs to be provided by the ISP to the user, and how the user consent should be given, in order to optimise user awareness and user convenience.

Answer:   It is a fallacy that blanket user consent is necessary for traffic management measures. Police can direct traffic without seeing people’s Identification documents, Internet Traffic can be managed in much the same way … that is what neutrality *is*.

There is no reasonable need for this kind of access.  If this access is demanded, it is not for user convenience, but for ISP convenience.  It weakens our personal privacy, by making it easier to spy on Internet users, as well as  improving the ISPs ability to provide preferential treatment to some Internet traffic and discriminate against other Internet traffic.

Does your answer to this question contain confidential information?

Answer: No

---

2. Transparency and switching (consumer choice)

Transparency is a key tool in the EU electronic communications framework to protect users and to ensure competition. Transparency enables consumers to optimise their informed choices and thus benefit fully from competition, in particular at a time when ISPs are developing new business models.

The BEREC investigation has revealed that many consumers have Internet access subscriptions with a number of restrictions. Moreover, the development of new business models is likely to lead to a broad range of offers which may contain different traffic management restrictions. These may address the needs or interests of specific consumers at prices which might not otherwise be available. It is, however, not clear whether ISPs are sufficiently transparent about such restrictions allowing consumers to make a deliberate choice. Customers, therefore, need clear, meaningful and comparable information on any limitations of their subscriptions comprehensible to all.

These requirements raise the question whether a restricted Internet access product may still be described, without qualification, as “Internet access” or whether the unqualified label “Internet access” should be reserved to (largely) unrestricted access offers. This debate has already been opened in some Member States and this public consultation seeks also views on this issue.

Another aspect of transparency concerns broadband speed, and in particular possible discrepancies between advertised speeds and actual speeds.

Transparency should be complemented with measures aimed at ensuring easy switching from one provider to another, and from one offer to another offer of the same service provider, to empower consumers to choose the service which best matches their individual needs. The electronic communications framework facilitates switching of operators by imposing the obligation to implement number portability within one day, by limiting the initial commitment period in contracts with consumers or by specifying that the conditions and procedures for contract termination shall not act as a disincentive against changing service provider.

It further specifies that subscribers have a right to withdraw from their contract without penalty upon notice of modification to the contractual conditions. It is also important to ensure that barriers do not arise as a result of the growing trend towards bundled services. This may require that switching processes and contractual arrangements are consistent between services offered in bundled packages, e.g. the most common “triple play” package of fixed voice, broadband and pay-TV.

Question 4:

In order to allow consumers to make informed choices, on the basis of clear, meaningful, and comparable information, which elements should be communicated to consumers?

– Elements related to traffic management practices:

a) Contractual restrictions (blocking, throttling, other restrictions on application use)

Answer: Important
Totally inappropriate.  Unacceptable.  Certainly not Net Neutrality.

This presupposes the right of an ISP to deliberately degrade the service it offers consumers. Why should consumers be forced to accept such restrictions?

b) Traffic management policy applied to prioritise certain traffic in specific circumstances

Answer: Important

Totally inappropriate. Unacceptable. Certainly not Net Neutrality.

Net Neutrality can only exist if traffic management is application-agnostic.

c) Whether and to what extent managed services may affect the quality of the best effort Internet (e.g. the possibility of the Internet connection being affected when watching IP-TV or when using other managed services)

Answer: Totally inappropriate. Unacceptable. Certainly not Net Neutrality.

e) Data allowances (caps), download limits

Answer: No. This artificial way to disproportionately increase revenue is both inappropriate and unacceptable.

f) What these data allowances enable customers to do in practice (download x hours of video; upload y photos etc.)

Answer:  Important
Calling this kind of restriction a “data allowance” would make Big Brother proud. These are nothing more than “data RESTRICTIONS” which have the effect of gouging consumers

Elements related to speed and quality:

a) Average speed, typical speed ranges and speed at peak times (upload and download)

Answer: Government needs to ensure that advertised speeds are accurate. After all, if they are not, the ISP is committing fraud. Fraud on the Internet should be just as illegal as fraud in the real world.

b) Respect of guaranteed minimum speed (if applicable)

Answer: Important
If an ISP offers a “guaranteed minimum speed” consumers must have a reliable simple way of measuring, and remedies if such speed is not delivered.

c) What these speeds allow customers to do in practice (video-streaming, audio-download, video-conferences etc.)

Answer: Important
If these speeds are being bought by discriminatory treatment of other Internet traffic, the price is too high. ISPs must have adequate infrastructure to supply advertised bandwidth speed.

d) Latency/network responsiveness (a measure of traffic delay) and which services would be affected thereby (e.g. certain applications such as IP-TV or videoconferencing would be more seriously impacted by higher traffic delays in the network of the provider)

Answer: Important
ISPs must have adequate infrastructure to supply advertised service.

e) Jitter (a measure of the variability over time of latency) and which services would be affected thereby (e.g. echoing in VoIP calls)

Answer: Important
ISPs must have adequate infrastructure to supply advertised service.

f) Packet loss rate (share of packets lost in the network) and which services would be affected thereby (e.g. VoIP)

Answer: Important
ISPs must have adequate infrastructure to supply advertised service.

g) Reliability of the service (network accessibility and retainability), i.e. measure for successful start and completion of data sessions

Answer: Important
ISPs must have adequate infrastructure to supply advertised service.

h) Quality parameters for (mobile) voice telephony (call setup success rate, dropped calls, speech quality, other)

Answer: Important
ISPs must have adequate infrastructure to supply advertised service.

i) Other, please specify:

Answer: If the “traffic management” requires taking bandwidth from one customer to supply the needs of another, it is never appropriate.

The real world equivalent would be a Hotel claiming to provide “first class service” by snatching a sandwich from the mouth of the customer in the coffee shop so it can fill the order of the VIP guest seated in the candlelit dining room.

Does your answer to question 12 (or to any of its sub-questions) contain confidential information?

Answer: No

Question 5:

Some ISPs currently apply ‘fair use policies’, which give them wide discretion to apply restrictions on traffic generated by users whose usage they consider excessive. Do you consider that, in case of contractual restrictions of data consumption, quantified data allowances (e.g. monthly caps of x MB or GB) are more transparent for consumers than discretionary fair use clauses?

Answer: No

Calling a policy “fair use” does not make it so.

Restrictions do not reult in fair use, but in restricted use. These restrictions are not beneficial to consumers, and making them transparent will not make them beneficial to consumers.

Another real world analogy: when I turn on the tap to fill my sink so I can wash dishes, I would be unhappy my flow of water stopped so the public utility could give my neighbor’s dishwashing machine preferential treatment.

Does your answer to this question contain confidential information?

Answer: No

Question 6:

a) When should the elements of information referred to in question 4 be provided to the consumer by the ISP?

Answer:  before signing the contract
IF these elements are going to be allowed under law, consumers must be informed well enough that they can make a reasonable assessment BEFORE signing any contract. Any changes to a legally binding contract necessarily require a new contract, and the ISP should be liable to penalties should the consumer not agree to such after-the-fact changes.

This is not Net Neutrality, but Net Restriction.

Communication to consumers is called “advertising,” and is not the same as contract negotiation.

If the ISP wants to change the contract, the contract needs to be renegotiated. Announcing unilateral changes to a legal contract during the term of such a contract is not acceptable.

b) Which format (e.g. contract, general terms and conditions, separate and specific information, other (please specify)) do you consider appropriate to communicate this information to consumers?

Answer: Communication to consumers is called “advertising,” and is not the same as contract negotiation.

If the ISP wants to change the contract, the contract needs to be renegotiated. Announcing unilateral changes to a legal contract during the term of such a contract is not acceptable.

Does your answer to this question contain confidential information?

Answer: No

Question 7:

a) In order to promote transparency and consumer choice, do you consider it necessary that comparable data on the Internet access provided by ISPs is collected and published by NRAs or another independent organisation?

Answer: Consumers need real data to be able to make informed choices.

Do you think this information should be broken down by geographic areas or different data plans?

Answer: Certainly.

b) What are the advantages and corresponding costs of this data collection and publication being undertaken by NRAs or by another type of organisation (please specify which one). Please provide an estimate at EU-level or for an EU Member State of your choice.

Answer: The advantage is that consumers can make informed choices. That ought to be of great value to any democratic state.

Does your answer to this question contain confidential information?

Answer: No

Question 8:

a) Do you consider it necessary to regulate the labelling as “Internet access” of subscriptions that restrict access to some Internet services, content or applications?

Answer: Yes.
Truth in advertising should be policed and enforced by all governments

b) If yes, which restrictions would be acceptable before a subscription could no longer be marketed, without qualification, as an “Internet access” product”?

Answer: None

c) What would be the consequences (including the cost) for ISPs if they were not allowed to market as ‘Internet access’ an offer with certain restrictions, or if such marketing was subject to mandatory qualification? Please provide quantification for your own company or an ISP of your choice explaining your assumptions and methodology.

Answer: Perhaps consumers would look more kindly on ISPs that employed honesty in marketing.

Does your answer to this question contain confidential information?

Answer: No

2.2 Switching

Question 9:

a) Please explain what barriers to switching ISPs still exist (if any) and how they can be overcome. Please mention in your reply all direct and indirect factors dissuading consumers from switching (e.g. obstacles linked to the terminal equipment, burden of proof regarding a possible breach of contract, etc.)

Answer: If the ISP has not lived up to its end of the contract, it is in breach of contract, no barrier to switching should exist.

b) How should an ISP inform consumers of changes to their packages?

Answer:  After the current contract expires. If the ISP changes the terms during the contract term, but fails to procure consumer acceptance of such change, the ISP is in breach of contract.

c) What actions by an ISP would constitute a breach of contract or modifications to the contractual conditions which would enable a consumer to be released from a contract?

Answer:  The same actions that would trigger breach of contract in the real world; not living up to the terms, and/or changing the terms without the consumer’s agreement.

d) Should customers be able to easily opt out from certain contractual restrictions (up to a completely unrestricted offer) by the same operator?

Answer:  Yes
Consumers should not be compelled to accept restrictions.

If yes, how could this be facilitated?

Answer: That would be up to the ISP to determine, under government oversight, of course.

e) Do you think that a customer should be allowed to switch to another operator within a reduced contract termination period in case his/her current operator does not at all offer an unrestricted Internet access product or does not allow switching to such unrestricted offer?

Answer: Yes, absolutely.
If the consumer’s ISP does not offer unrestricted Internet access, but another ISP does, the consumer should not be penalized for choosing Net Neutrality.

Does your answer to this question contain confidential information?

Answer: No

Question 10:

While there may be valid (technical) reasons why consumers do not always get the advertised service speed or quality, should there be a limit on the discrepancy between advertised and actual service parameters (e.g. speed)?

Answer: Yes
Truth in advertising. Consumer protection.

If you consider that there should be a limit on the discrepancy, how should this limit be defined?

Answer: I would put the question to I would put the question to Christopher Parsons (@caparsons) [http://www.christopher-parsons.com/blog/]

Does your answer to this question contain confidential information?

Answer: No

Question 11:

Pursuant to Article 30 (6) of the Universal Service Directive conditions and procedures for contract termination shall not act as a disincentive against changing service providers. How could changing of operators be facilitated? Please provide examples and explain your response.

Answer: Governments must enact appropriate legislation to protect consumers.

Question 12:

How could the transparency of bundles (packages including telephony, Internet, TV) be improved for consumers and how could switching be facilitated in the presence of bundles?

Answer: Consumers want — and would be better served by being able — to buy what they want without being forced to take (and thus subsidize) services they do not want.  If ISPs want to mess about with bundles, this is the ISPs decision as part of its business model.  If an ISP doesn’t offer consumers what they want,  it may well fail.  That is the cost of doing business.

Does your answer to this question contain confidential information?

Answer: No

Question 13:

a) How important would be the benefits for end-users of improved transparency and facilitated switching?

Answer: Very important.
Consumer choice is always best for consumers when it is both informed and unrestricted.

b) What would be the expected benefits in terms of innovation by new businesses (content or applications) as a consequence of improved consumer choice and increased competition between ISPs?

Answer: Businesses that cater to consumers and offer real Net Neutrality would prosper, while those seeking to discriminate, throttle and restrict consumers would not.

Does your answer to this question contain confidential information?

Answer: No

3. Process
Question 14:

a) Do you consider that intervention by public authorities is necessary at this stage?

Answer: Yes

If so, what would be the appropriate level of such intervention?

Answer: Get some laws in place to guarantee citizens access to real Net Neutrality.

b) What would be the consequences of divergent interventions by public authorities in the EU Member States?

Answer: If necessary, governments could take over ISPs that do not follow the law.

Does your answer to this question contain confidential information?

Answer: No

Question 15:

Under article 22(3) USD NRAs have the power to set minimum quality of service requirements on undertakings providing public communications networks. In a scenario where in a given MemberState no unrestricted offer is available (for instance because all operators actually block VoIP), do you consider that the “minimum quality of service tool” should be applied by the NRA to require operators to provide certain unrestricted offers?

Answer: Yes
Doesn’t the law (as stated) provide for this?

Does your answer to this question contain confidential information?

Answer: No

Your response must reach the Commission by 15 October 2012!