Here’s what Europe’s net neutrality law would look like

Europe’s digital chief, Neelie Kroes, said last week that she would push through the EU’s first net neutrality legislation as part of a drive to demonstrate the relevance of the union. There was no detail at the time, but now we have it – and net neutrality advocates will not be pleased.

Kroes laid out her plans at a meeting on “guaranteeing competition and the open internet in Europe” on Tuesday morning. Here’s a breakdown:

  • One size may not fit all — ISPs should be able to offer connections with guaranteed quality of service, with regular subscribers getting a “best efforts internet”.
  • Transparency — People signing up to internet packages should be clearly told what is included, what is not, and what speed they can expect.
  • Easier switching — It must be easier to switch provider. Barriers including “excessive charges, modem hire or email addresses” will be “removed”.
  • No blocking/throttling — ISPs and carriers will not be able to deliberately degrade or block services that rival their own, such as VoIP or messaging services.

That last one is arguably the most important new proposal: for the first time, it will not be legal for a mobile carrier to block or throttle Skype usage, for example. However, it won’t answer all the concerns of net neutrality advocates.

The basics

Let’s remind ourselves first of what net neutrality means in practical terms: the idea that all services get treated equally on the internet. Some real die-hards will argue that it should mean the banning of traffic management, but that’s unworkable and frankly it clouds the debate. What we are really talking about is maintaining a truly open and competitive market for internet services.

Blocking and throttling services is a flagrant and very widespread abuse – European regulators have estimated that 236 million mobile subscribers in Europe are blocked from using Skype – so obviously it will be good to see that go. But what about more subtle attempts at favoring some services over others, such as Deutsche Telekom’s current ploy?

As we reported in April, Deutsche Telekom is introducing usage caps on its fixed-line internet services. The ISP’s own entertainment services, often bundled with its internet connectivity, do not count towards these caps. So, in effect, customers are being steered towards the use of these services and away from that of Netflix-style rivals, because the use of the latter services might mean hitting those caps and seeing a slowed-down connection as a result. This is a disincentive for startups that might want to set up new services in Germany to rival Deutsche Telekom’s in-house offering.

It’s far from clear that the European Commission’s new proposals would stop such behavior. Similarly, there is nothing in there to stop a different kind of net neutrality abuse: ISPs charging content providers for carrying their traffic. In fact, the acceptance of the idea of a two-speed internet – for this is what Kroes is in effect describing – makes this sort of development more likely.

If there’s a fast lane in place, carriers can go to content providers and ask: “Would you like to be part of that lane, or relegated to best efforts?” The result? Entrenched and deep-pocketed providers would be able to pay, while their newer, smaller rivals would not.

Cloud impact

One of the speakers at the Brussels meeting was James Waterworth, the vice-president of the Computer and Communications Industry Association (CCIA). He pointed out that it’s all very well to introduce transparency requirements for consumers, so that they understand what they’re signing up for, but that doesn’t do much for businesses:

“Because cloud services depends on network effects, transparency will not work. If you are the CIO of a company with a salesforce who move around, who go between 5-20 sites, possibly across different countries, if you want to deploy a productivity suite you’d have to know which productivity suites can or cannot be used on all the different connections your workforce will travel to. That’s impossible.”

And then there was the contribution of law professor Chris Marsden, of the University of Sussex. He suggested there was a fatal flaw in the argument of ISPs who want to bypass net neutrality – they say they need to place limitations on connectivity in order to deal with the “data explosion”, but there is in reality no such thing. Marsden noted that figures from Cisco(s csco) itself – remember, a company trying to sell carriers kit to cope with this supposed explosion – indicated a manageable increase in the amount of data people are using:

“There is no data explosion on the European internet, so we shouldn’t be trying to make policy based on a fallacious assumption,” he said. “If we keep talking about data explosions, the thing that’s going to explode is the heads of the technical people who know there is no data explosion.”

Whether or not you agree with Marsden’s interpretation of Cisco’s figures, his point highlights an inherent logical contradiction in the carriers’ stance: if the “data explosion” is so severe as to necessitate the creation of fast lanes with guaranteed quality of service, doesn’t that mean the “best efforts” slow lanes will necessarily be slower than the equal-access lane we have today? And if that’s not the case, then why create divided classes of internet access? They can’t have it both ways.

U.S. comparison

Kroes’s proposals are not that dissimilar to those brought in by the U.S. Federal Communication Commission (FCC) a couple of years back (rules that are currently back in court due to the displeasure of Verizon(s vz)). Those rules also mandate transparency and stop fixed-line providers from discriminating against certain types of traffic, although they are somewhat more lenient towards mobile providers – a distinction Kroes doesn’t appear to be making. And like the European Commission’s proposals, the FCC’s rules leave scope for a two-speed internet.

In short, the FCC’s rules were what the uncharitably-minded might call “a fudge” or, in kinder terms, “net neutrality lite”. It appears that Kroes is aiming for something similar, albeit without the short-sighted split between fixed and mobile connections.

In some ways it is understandable that she is doing so. The commissioner is desperate to introduce Europe’s first net neutrality legislation ahead of next year’s European Parliament elections, which threaten to fill the parliament with people who want to end the European project. She wants to show that the concerns of the ordinary person – particularly the younger ordinary person – are being taken into account.

The problem is, net neutrality is a relatively abstract concept that will never excite most people until it’s gone. The other part of Kroes’s big push – the abolition of mobile roaming premiums within the single market – is a much more sure-fire vote-winner.

If the proposals she is making don’t do the job, and if they’re not connected with winning the carriers’ acceptance of lower roaming fees, perhaps they shouldn’t be rushed.