A committee of the European Parliament has almost unanimously voted through net neutrality proposals that had been proposed by digital agenda commissioner Neelie Kroes – but not without some amendments that seriously tighten up the language. For the most part, these changes will please net neutrality advocates (who are in any case getting their first European net neutrality legislation here).
As the text now stands (see the amendments embedded below), it looks very much like ISPs and content providers have lost the explicit right — included in the original proposals — to strike deals between one another for “specialized services”. This doesn’t mean they can’t strike deals, but it does mean that ability is not entrenched in Europe-wide law. The amendments also place stricter conditions on the deals that can be struck.
It also appears that there will be stricter limitations on how internet traffic can be shaped or limited – only for transient network congestion and specific court orders, and not for crime-fighting or at the whim of the national government. (That said, sources in the legislative process have suggested to me that the original text in fact included fewer loopholes than now exist.)
In a statement on Thursday, Kroes welcomed the 35-1 vote by the Internal Market and Consumer Rights (IMCO) committee”, but said she and her team would “need to assess in more detail whether the actual amendments provide in all cases enough legal certainty to meet our shared objectives.”
The most contentious issue here is that of “specialized services” such as IPTV, and whether ISPs and content providers can strike deals to see content pushed into a fast lane — a move that net neutrality activists say could lead to under-investment in regular internet connectivity, and let big content providers outspend startups into obscurity. Kroes’s original proposal said such deals would be fine, as long as the result isn’t “marketed or widely used as a substitute for internet access service.”
On the subject of defining “specialized services,” an IMCO amendment takes out the “widely” and throws in some extra conditions, including that such services are “optimized for specific content, applications or services, or a combination thereof, by deploying traffic management to ensure the appropriate level of network capacity and quality, provided over logically distinct capacity and relying on strict admission control.”
Some new language also pours cold water on any ideas people might be having about fencing off the European internet: “End-users shall be free to access and distribute information and content, run applications, and use devices, services and software of their choice, irrespective of their origin or destination, via their internet access service.”
This paragraph is out of the text now, too:
“End-users shall be free to enter into agreements on data volumes and speeds with providers of internet access services and, in accordance with any such agreements relative to data volumes, to avail of any offers by providers of internet content, applications and services.”
That’s because committee members said regulation wasn’t needed to cover what contracts of this kind can and can’t say, and also because access to the open, non-discriminatory internet should be a right, not a freedom.
Article 23 is the part of the proposal that says ISPs and content providers can “enter into agreements with each other to transmit the related data volumes or traffic as specialized services with a defined quality of service or dedicated capacity.” Or at least it was – an amendment means ISPs or content providers can offer specialized services.
Now, remember the bit above where IMCO made sure “traffic management” was part of the language used to describe what a specialized service is? The committee also included much tighter language for what “reasonable traffic management” can entail. This is now almost exclusively a matter of reducing network congestion on a temporary, limited basis, although it can also involve implementing a court order (the blocking of a copyright-infringement site, for example).
What did Kroes include as “reasonable traffic management” that’s now out of the text? The implementation of legislative provisions, preventing or impeding “serious crimes” such as child pornography, preserving “the integrity and security of the network” and preventing spam.
Data protection authorities now get the chance to be involved in keeping an eye on what traffic management ISPs are applying, and “the criteria for defining reasonable traffic management measures shall be subject to periodic review.” And where Kroes said national regulators should be able to mandate minimum quality-of-service requirements, the committee has also added the possibility for “other quality-of-service parameters” to be imposed where appropriate.
Another parliamentary committee, that for Industry, Research and Energy (ITRE), will still need to vote on Kroes’s proposals on 24 February, and its members will no doubt have their own amendments. After that, it’s over to the full Parliament for a plenary vote, probably in April. It’s also worth remembering that the legislation has many other elements too, such as making it easier for consumers to switch provider.
This ain’t over yet, but what happened today went a long way towards tightening up the legislation’s language and, I believe, ensuring that European citizens can continue to enjoy an open, non-discriminatory internet.