Who would knowingly request the invasion of their privacy and violation of their free speech rights?

There are rumours that the Council of Ministers of the European Union is reviewing its proposal on net neutrality that leaked recently. However, there seem to be many observers who are puzzled by one piece of language in the proposal. That is the phrase "except where specifically requested by an end-user". Why would the EU Council would consider an individual 'requesting' traffic management as an exception to a net neutrality rule? I put forward one possible answer.

We've already seen how the Council of Ministers' proposal for net neutraliity* is transparently aimed at precisely the opposite. It's 'principles' concern traffic management. It would get the ISPs off-the-hook for filtering, blocking and throttling. Moreover, in remaining silent on matters such as prioritisation and zero-rating, it leaves the door wide open for them to act as gate-keepers for content on a a Europe-wide basis. ( Is the EU Council trying to delete net neutrality? )

The Council's text contains a double negative. Essentially, it contains a ban on blocking or discrimination against specific traffic types - this reads like a net neutrality rule as we would understand it. But it is subject to several exceptions. The exceptions clarify the situations where such a ban need not apply. These are, for example, when there is a court order for a block, such as for enforcing copyright. Therefore, if there is a court order to block certain content, then the ISPs may be exempt from not blocking.

Between them, these exceptions provide a set of get outs for many of the things the ISPs want to do, such as provide so-called specialised services or zero-rating of content, and they would be able to do so on their own terms. ( EU Council divided over net neutrality law ). This is the exact opposite of the European Parliament's intentions, when it adopted the net neutrality amendments to the Telecoms Regulation (Connected Continent) last Spring. (See Net neutrality & data retention - Europe pushes back against a corporatised Internet.)

But there is an overriding exception that has puzzled many observers. This is the phrase "Except where specifically requested by an end-user" . Working through the double negative, ISPs are banned from blocking specific content, or specific classes of content, except where the end-user - that's you or me - has somehow requested the blocking, slowing down, altering, degrading or discriminating. The text states:

"Except where specifically requested by an end-user, providers of internet access services shall not apply traffic management measures which block, slow down, alter, degrade or discriminate against specific content, applications or services, or specific classes thereof,

But who, in their right mind, would request that their access to content is blocked, or that their connection is slowed down, degraded, that content is altered or discriminated against? Who would say 'yes, please do use deep packet inspection to check all the websites I go to, just in case' - of what?

The use of traffic management by Internet service providers to block, degrade and discriminate against web content and services, is a potentially invasive use of that technology, with the capability to seriously violate free speech rights. No-one would make a such a request, knowingly - surely they would not?

It begs the question who actually wants this language in the law - to whom would it be useful?

It would be extremely useful to ISPs who are 'voluntarily' obligated to implement parental controls, as in the UK - just get the punters to click a pre-ticked box, and they've requested it. Then the ISP would have the freedom to impose any kind of content filtering without further regulation. It would also be useful to any authoritarian regime, who could then claim that the population had 'requested' political censorship.

The ISPs believe that the pre-ticked box keeps them just about on the right side of EU law, although from a fundamental rights perspective, that is debatable.

In this context, it raises an interesting perspective on the Council's position.

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Letters of protest have now been sent to the Council of Ministers by Access Now and other civil society advocates, Centre for Democracy and Technology , and the European Parliament (131 MEPs signed, co-ordinated by MEP Marietje Schaake). Citizens are being invited to add their voice at Save the Internet.eu

*NB To avoid any confusion, the proposal I am discussing is the Council of Ministers of the 28 States of the European Union and it is one of the three EU institutions involved in making new legislation. This is not the same as a proposed resolution of the Council of Europe that some readers will know about. The Council of Europe oversees human rights, and it is not involved in the legislative process.

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If you like this article, then you may also like my books:

A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms " brilliant expos?"

The Copyright Enforcement Enigma Internet Politics and the Telecoms Package "excellent work of scholarship "

This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics - please cite as Monica Horten, 2013, EU net neutrality battle: what end-user requests traffic management? in Iptegrity.com 27 November 2014 . Commercial users - please contact me.

Tags: EU, Telecoms Regulation, European Commission, European Parliament, Connected Continent, net neutrality, Internet, Telecoms Package, law, commission, council, specialised services, traffic management, zero rated, prioristised Internet traffic.