Is net neutrality incompatible with traffic management policies? Here is another briefing paper on the Telecoms Package, written by myself and  a colleague, Benedetta Brevini. In the paper, we suggest that a stronger role should be given to national and European regulators to monitor and oversee discriminatory practices by network operators, in order to protect citizens' interests.

We believe that it is essential for policy-makers to guarantee the neutrality of the network, as the Information Society Commissioner, Viviane Reding, has said.

We consider how ‘bandwidth management' is different from ‘traffic management', and how in the new telecoms environment of ‘traffic management', the problem facing the regulators will entail disputes arising between content providers and network operators, which gives them a different set of regulatory issues from the traditional, purely network-based,  issues. 

Finally,  we consider how the Federal Communications Commission (FCC) was able to address such an  issue when it arose in the US, compared with the powers that EU regulators would have (or not) under the proposals currently in the Telecoms Package. The paper is released here

The UK government wants to cut out users rights to access Internet content, applications and services. Some of the information used to justify the change has been cut and pasted from the Wikipedia.

Amendments to the Telecoms Package circulated in Brussels by the UK government, seek to cross out users' rights to access and distribute Internet content and services. And they want to replace it with a 'principle' that users can be told not only the conditions for access, but also the conditions for the use of applications and services.

The UK government texts have been heavily criticised by the French campaigning group La Quadrature du Net . It is believed that they could have been drawn up by the UK regulator, Ofcom.

The amendments have also appeared in a set of compromise proposals put forward by the Czech Presidency for the Universal Services Directive (Harbour report).

The proposed amendments cut out completely any users' rights to do with content - whether accessing or distributing - which would appear to be in breach of the European Charter of Fundamental rights, Article 10. The Charter states that everyone has the right "to receive and impart information and ideas without interference by public authority and regardless of frontiers." In the digital age, the Internet, and the associated applications and services provided by the World Wide Web, is the means by which people exercise that right.

"NRAs shall promote the interests of the citizens of the European Union by inter alia:

(g) applying the principle that end-users should be able there should be transparency of conditions under which services are provided, including information on the conditions of to access to and/or use of and distribute information or run applications and services, and of any traffic management policies of their choice

The wording "conditions under which services are provided" and "conditions of use" also allude to the principle of conditional access which applies to satellite and cable television. In EU law, it is established in the Conditional Access Directive (Directive 98/84/EC) which concerns protection of copyright on satellite and cable television systems. The subscription television model is alluded to

Telcos are lobbying hard for discriminatory practices in network management to be permited, which threaten the neutrality of the Internet. They are  opposed by citizens groups who are calling on MEPs to close the loopholes in the  Telecoms Package Second Reading.

Liberty Global is the latest telco to throw its hat in the anti-net neutrality ring, with a statement in support of its colleagues at AT&T and Verizon. In a statement to run with its European Parliament seminar today, Liberty Global calls for limitations on regulatory intervention in respect of ‘network management practices'.  The AT&T amendments are about trying to stop European regulators taking the kind of action that the FCC was able to take in the Comcast case, where a netwwork operator was restricting lawful services on the Internet and the FCC told it to stop.

 La Quadrature du Net has issued a dossier which debunks the telco arguments.  The campaigning group has also done a full analysis of the Telecoms Package Second Reading amendments,  and issued a statement in  which it says "there is still a blatant lack for clarification and no concrete guarantee that Telecom operators won't be allowed full control over the Internet". It  calls on MEPS in the  IMCO and ITRE committees responsible for the Second Reading to be vigilant and to "patch" the final  loopholes left open in the Package.

 Liberty Global also   expresses concerns about the cooperation amendment (Universal Services directive, Article 33.3 in the common position). In its statement, it says:

"... the Council Common Position still refers to a cooperation procedure requiring network

Why does IMCO want to limit  users ? AT&T lobbied for users to be explicitly told by the telcos about  restrictions  or limitations on their Internet service.  The revised Harbour  report has done as they asked for. It risks setting Europe on the slippery slope away from a neutral network towards one which discriminates and ultimately stagnates.

The revised Universal Services directive (Harbour report) in the Telecoms Package Second Reading, released on Friday, wants users to be told about "any limitations imposed by the undertaking, in accordance with national law, on a subscriber's ability to access, use or distribute information or run applications or services". It also specifies that the user should be told "the type of content, application or service concerne,  individual applications or services, or both".

The European Parliament's IMCO  committee which prepared the report has replaced the Council's text which stated that users should be told about the network operator's traffic management policies. The reason for the switch is simply that the users won't understand the language of traffic management polices. In terms of the  meaning of the law, however, it is exactly the same thing.

The changes were lobbied for by AT&T, which put forward 5 amendments dealing with "traffic management policies" and which raised the concern of citizens groups as being a threat to net neutrality. Although  2 out of 5 would normally represent

An amendment planted by the French film industry remains firmly at the centre of the Telecoms Package.

I occasionally get asked if copyright is still in the Telecoms Package, and  now that we have the Council's Common Position, and the Second Reading has officially begun, it is worth reviewing the case. Recent legal developments in Member States, such as the Irish music industry  v Eircom case in Ireland, also help to shed light on the issues.

The answer is that copyright is  still there. Some of the provisions have been weakened, and the Package -  as in the Council's Common Position of 9 February -   no longer contains the  onerous "lawful content" provision  that risked making  ISPs liable  for Internet  content. The issue now is how much weaker the provisions are, and what they would or would not permit.  

To be clear, the Telecoms Package copyright amendments do not directly mandate graduated response/3-strikes. The copyright amendments have the effect of putting in place  the  legal foundation stones for 3-strikes. They were intended to get around certain provisions in EU law, which prevent ISPs from accepting liability for content and copyright infringement, and which also prevented them from divulging information about their subscribers to third parties. They are inter-linked, and  it is necessary to interpret them as a linked series rather than individually - as explained in a report by the European Data Protection Supervisor .

The central amendment calling for ISPs to "cooperate" with rights-holders, that was drafted by the French film industry