EDRi @ European Business Summit 2014: Digital Citizenship in Brussels – the case of Net Neutrality

Written by Joe McNamee, Executive Director of European Digital Rights (EDRi)

Net neutrality is a digital rights issue, par excellence. The internet has created huge opportunities for the exercise of freedom of communication, for freedom of assembly and for democracy. These opportunities have the same roots as the huge economic success of the internet: openness. The internet allows anyone to connect to anyone without discrimination. Ideas – political, social or business – become global phenomena at a speed that would be unthinkable without this openness. This openness has been preserved in a telecommunications market that exists because of regulation. Starting from the old national telecoms monopolies 25 years ago, the EU prised the markets open with a series of major liberalisation packages, supplemented with targeted interventions (such as on roaming and local loop unbundling) whenever it became clear (or, to be more precise, about two years after it became clear) that the natural anti-competitive tendency of network industries started kicking in. In this context, it is somewhat funny, although you do have to admire their cheek, to listen to representatives of former monopolies furrow their collective brows and talk in hushed tones about the “dangers of over-regulation” and the “risks to investment” in infrastructure if net neutrality is protected by law. These protestations are even more amusing when we consider that the telecoms industry lobbied against pretty much every pro-competitive measure, ostensibly due to fears about network investment – fears that subsequently proved unfounded. This is an industry that is as successful as it is because political leaders largely ignored this nonsense and pushed competition into a market that gravitates towards anti-competitive behaviour. As an alternative to this “over-regulation” that they claim to fear, the former monopolies propose a complete re-invention of how traffic flows over the internet. They have suggested a “sending party pays” model – where they can charge any online service for “sending” traffic to their customers – even though, it is quite obvious that their customers actively choose (and pay to choose) to download content rather than it being passively sent to them. In other words, they suggest creating a new monopoly, where access to their customers becomes the product. Instead of an open internet, we would have a closed, unpredictable “internet”. Individuals would pay to connect to the internet and “the internet” would pay to connect to them! The telecoms operators explain that competition would act as a safeguard, because customers can change from one operator to another if they are not getting access to the right services. And, if you have never tried to change from one access provider to another, you might be inclined to believe this. However, what about if you are trying to get investment for an innovative new EU-wide online service in this new market? You have to explain to the bank that, at any given moment, you could lose access to half of the market to any given country, unless you pay the dominant telecoms operator whatever ransom they decide to charge to permit access to its customer base. The damage to innovation would be disastrous. Ultimately, less innovation will lead to less compelling online content and services, leading to less demand for high-quality services, to the detriment of the entire online economy, and to the detriment of the telecoms companies. However, the destruction of net neutrality would come at an even greater cost – namely free speech. The internet has flourished because the EU, following the example of the USA, has established provisions to make sure that, within strict limits, internet companies cannot be held iable for illegal content to which they unknowingly provide access to. In EU jargon, they cannot be held liable if they are acting as a “mere conduit” to the content in question.

If the telecoms providers are deciding what their customers can gain access to – particularly if using surveillance methods such as “deep packet inspection” – they will no longer be able to claim that they are “mere conduits”. This will inevitably lead to policy-makers demanding that they should be more liable for what is accessed by their customers. It will also lead to more court injunctions that will seek to use the expanded technical capacities of telecoms companies to identify and block traffic on their networks. Already this year, we have seen the European Court of Justice rule that crude, non-specific injunctions can be imposed on telecoms companies to “take reasonable measures” (“reasonable” will change in meaning as technical capacities develop) to prevent access to specific content or websites. So, instead of “over-regulation”, the telecoms companies campaign in favour of a restructuring of the internet. They campaign for a restructuring that would destroy the vibrant nature of online service provision, to the detriment of citizens and business, including the telecoms companies. They campaign for a restructuring in the knowledge that this will come at the cost of a significant increase in legal liability, leading to an increase in surveillance, blocking and filtering. Still, that’s better than over- regulation, apparently. EDRi believes that the openness of the internet is what has generated the amazing tools that citizens now have at their fingertips to communicate, to campaign and to organise. We believe that the environment that generated this innovation must be maintained. We believe that the legal protections of the businesses that facilitate the exercise of our online freedoms must be preserved. – European Digital Rights (EDRi) is an association of 36 digital rights organisations from 21 countries. We campaign to defend citizens’ rights in the online environment. Joe McNamee is Executive Director of European Digital Rights, where he has worked since 2009. He holds Master’s Degrees in European Politics (Wales) and International Law (Kent). His first job in the internet sector was as a senior technical support adviser for an internet access provider in 1995. Prior to joining EDRi, he worked in a telecoms consultancy where he ran three independent research projects for the European Commission – on local loop unbundling, telecoms/internet convergence and information society markets in eight former Soviet states.