Will TISA endeavours wipe net neutrality?
- Author: Monica Horten
- Published: 16 June 2015
International talks on a secret deal over trade in services threaten to overturn to net neutrality policies currently on the table on both sides of the Atlantic. Instead, back-room negotiators could put in place an international framework that leaves the door open for restrictive behaviour by the telecommunications companies that run the Internet.
The agreement is known as TISA - Trade in Services Agreement. It is a multi-lateral free trade agreement, intended to make it easier for companies to export services to other countries. The deal is being brokered between the United States, the European Union and 23 other countries. If adopted, it would put in place a new international regime for services that could override national laws. On signing, each signatory country would have to be adopted into national law. In that regard, the position of TISA is similar to that of the now-demised ACTA.
TISA talks have been underway for around two years. The European Union Council of Ministers approved the negotiating mandate in March 2013, but other than this one document, declassified this year in March, nothing has been made public.
However, a number of documents from the TISA talks were released last week by Wikileaks. Two of these are of particular interest from an Internet perspective, because they throw some sunlight onto how TISA proposes to address telecommunications and e-commerce services.
In the context of net neutrality, there is some language that is particularly striking. It calls on the signatory governments to endeavour not to restrict Internet traffic. It begs the question what does endeavour mean in this context? Should governments legislate or simply ask nicely that providers do not impose restrictions? Asking nicely, of course, is ineffective and the concern is that this language would open wide a hole in the law that would permit - or not forbid - broadband providers from imposing restrictions.
The text being proposed is:
Each Party shall endeavour not to [...] restrict the ability of service suppliers to supply services over the Internet [and] shall endeavour to promote the interoperability of services and technologies, where appropriate.
It is unclear what is meant, but my interpretation is that this is an attempt to preclude a net neutrality law - where net neutrality is perceived by the telecoms corporations as a restrictive law. It could be a weak attempt to prevent blocking or prioritisation. The exact meaning depends on what is meant by "supply services over the Internet": this clumsily-written phrase could be referring to hosting platforms and over-the-top services, or it could be referring to broadband providers.
The TISA also re-introduces language of 'reasonable network management'. This is a formula that the large telecoms corporations favour, because they believe it would allow them to implement a range of traffic management options on their networks. Traffic management is in part about congestion management, but also encompasses blocking, filtering and deep packet inspection.
Each Party shall endeavour to ensure that internet access providers avoid unreasonable discrimination in transmitting lawful network traffic.
In the EU, this language was debated at the time of the 2009 EU Telecoms Package, when it was found within amendments proposed by AT&T and other telecoms corporations.
This clause also raises serious question marks around the notion of lawful network traffic. I am not sure whether this is a notion that would have any legal validity - but maybe my lawyer readers can help here!
Ultimately, the TISA text seeks to embed a legal regime that enables restrictive behaviour by broadband providers and which runs contrary to the proposed net neutrality policies from both the FCC and the European Parliament.
---
This article was prepared using a leaked drafts of the Telecoms and E-commerce Annexes to the Trade in Services Agreement (TISA) made public by Wikileaks.
---
The political context for the EU telecoms policy is discussed in my book The Copyright Enforcement Enigma which discusses the 2009 Telecoms Package and the processing of it in the European Parliament. The book explains all about how the political processing works.
If you are interested in how the lobbying operates in the European Parliament, then you may also like my other book A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms
---
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, 2015, in Iptegrity.com, 17 June 2015. Commercial users - please contact me.
- Article Views: 32008
IPtegrity politics
- What's influencing tech policy in 2025?
- Online Safety and the Westminster honey trap
- Shadow bans: EU and UK diverge on user redress
- EU at loggerheads over chat control
- Why the Online Safety Act is not fit for purpose
- Fixing the human rights failings in the Online Safety Act
- Whatever happened to the AI Bill?
- Hidden effects of the UK Online Safety Act
- EU puts chat control on back burner
- Why did X lock my account for not providing my birthday?
- Creation of deep fakes to be criminal offence under new law
- AI and tech: Asks for the new government
- How WhatsApp holds structural power
- Meta rolls out encryption as political headwinds ease
- EU law set for new course on child online safety
- Online Safety Act: Ofcom’s 1700-pages of tech platform rules
- MEPs reach political agreement to protect children and privacy
About Iptegrity
Iptegrity.com is the website of Dr Monica Horten, independent policy advisor: online safety, technology and human rights. Advocating to protect the rights of the majority of law abiding citizens online. Independent expert on the Council of Europe Committee of Experts on online safety and empowerment of content creators and users. Published author, and post-doctoral scholar, with a PhD from the University of Westminster, and a DipM from the Chartered Institute of Marketing. Former telecoms journalist, experienced panelist and Chair, cited in the media eg BBC, iNews, Times, Guardian and Politico.
Online Safety
- Online Safety and the Westminster honey trap
- Shadow bans: EU and UK diverge on user redress
- Why the Online Safety Act is not fit for purpose
- Fixing the human rights failings in the Online Safety Act
- Hidden effects of the UK Online Safety Act
- Why did X lock my account for not providing my birthday?
- Online Safety Act: Ofcom’s 1700-pages of tech platform rules
- Online Safety - a non-consensual Act
- Online Safety Bill passes as US court blocks age-checks law
- Online Safety Bill: ray of hope for free speech
- National Crime Agency to run new small boats social media centre
- Online Safety Bill: does government want to snoop on your WhatsApps?
- What is content of democratic importance?
- Online Safety Bill: One rule for them and another for us
- Online Safety Bill - Freedom to interfere?