Glass half-full? La Quadrature analysis

A lot of lawyers are scrambling to decipher what the new Article 1.3a means - clearly it allows for adjudication and then potentially a fair trial at a later stage - after being cut off or before? Here's La Quadrature's analysis, which is a lot more balanced than some might expect:

The new provision gives2 "effective judicial protection and due process", guarantees "the principle of presumption of innocence and the right to privacy" and the respect of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

However, the text only speaks of "a prior fair and impartial procedure" instead of a prior ruling by the judicial authorities, guaranteed by the original "amendment 138", and contains loopholes and ambiguities. The invalidation of freedom-killer measures such as "three strikes policies" will now depend on interpretation by the European Court of Justice and national courts. Moreover, the text only relates to measures taken by Member States and thereby fails to bar telecom operators and entertainment industries from knocking down the founding principle of Net neutrality.

Engstrom of Pirate Party hails new language as a victory

This is very interesting - the fact that some kind of prior tribunal needs to hear a disconnection appeal, and the need for judicial hearings after disconnection, is seen as positive by the Pirate and Green parties. That's more explicable when you see what the Council wanted as a sting in the tail of the recital!

"This shall not Affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights, to establish, inter alia, a requirement of a judicial decision Authorizing the measures to be ceilings."

European Parliament caves in as expected - Telecoms Package will be national law by 2011

That was quick, no messing around pretending to stand on principle!

A review of where we stand:

Following a series of Trialogue and CoReper meetings, the Presidency proposed new text to replace Amendment 138/46 for consideration at the first Conciliation Committee meeting last evening 4th November (to be inserted as a new Article 1 paragraph 3a of the Framework Directive 2002/21/EC);

The Council (27 member states) fully supported this text ;

The Citizens' Rights directive (amending the Universal Service and e-Privacy directives) along with the Regulation establishing BEREC was approved at the General Affairs Council on 26th October - Member States have 18 months to implement these from the the point of publication in the Official Journal of the European Union.

Here's the new text in the Framework Directive Article 1.3a (subject to a final vote in the European Parliament):

Any of these measures regarding end-users' access to or use of service and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process.

Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to an effective and timely judicial review shall be guaranteed.

120,000 poorer households to lose Internet due to Labour tax?

The maths is simple - raising Internet prices 50p/month to pay for rural connections will not only distort whatever market there may be out there in middle-class rural idylls, but also will increase prices 3%, reducing the market 0.6% and therefore 120,000 households. Charlie Dunstone speaks more sense - and of course has a hotline to David Cameron's team!

The tax is the 'flagship' with 'Three strikes' of the Digital Economy Bill out this month - the dying flail of the Labour government.

Proof reading the next week - and thanks reader(s)!

I am now proof reading the book, which should be out by Bloomsbury within the month - check back in for the URL for the Creative Commons download.

This has been the busiest NN month on record, with the US and Canadian rulings and the European Conciliation. You (i.e. the blog audience) is now 700 visitors a month and 1200 page views - which is double its previous level.

Thanks for reading and do comment on anything you find interesting or news I have missed. Adelante!

Ofcom broadband speed Code of Practice - worth the paper its written on?

Sigh, the much-heralded 'self'-regulatory Code of Practice needs a bit more co- and a bit less self-

I was astonished to hear from Candian regulators that they thought this was a good model, though it had to be forced through over the near-dead bodies of fixed ISPs, mobile ISPs have ignored it, and they all routinely traffic shape and otherwise throttle.

Here's 3 - my broadband ISP, hahahah, broadband huh? - and their advice on how I can expect 0.6-1.6mbps.

Here's an email dashed off to Ofcom to update their website and amend a dead link:

Dear John  On the consumer advice page, the link as typed works, but the hyperlink  doesn't! At: http://www.ofcom.org.uk/telecoms/ioi/copbb/consumerguide/  It should be: http://www.ofcom.org.uk/telecoms/ioi/copbb/list/    It is: http://rhprod-webstg01:8080/telecoms/ioi/copbb/list/ (dead link)  Also, the list of providers does not have any date of updating - though  you describe the list as being amended as providers wish to drop off the  list.  I note that no broadband mobile provider wants to join.  Thanks Chris

'Three strikes' in Digital Economy Bill - but back to 2011

Lord Mandelson has put back the date for'3 strikes' against supposed pirates to mid-2011 or later - where it started with the Digital Britain report back in June. So that's a problem for a new Tory government and an emasculated future Ofcom-lite.

Co-regulation proposed for US - too late?

Interesting suggestion for adoption in US of a co-regulatory scheme - how can you have audit and arbitration without government sanction - on net neutrality - now if only the industry had cooked this up before the NPRM. Will the growth of Ofcom's scheme prove a spur?

Japan - screamingly fast open mobile networks

Its worth exploring the future of mobile a bit - which is Japan, led by Sacchio Semoto, who opened up long distance (KDDI) AND broadband E-access) in the 1990s, and in 2005 formed e-Mobile. It launched its HSPA network at 5Mbps in 2007, and in 2009 rolled out HSPA+ at 21Mbps. Its only in the major cities so far, but rolling out via dongles for laptops - so open access. The prices vary according to monthly bitcap.

The important element of this story is that the entrant aggressively persued open access, not walled gardens - like 3 in Europe but on steroids. That has forced DoCoMo and others to respond, with nationwide HSPA, and UQ Comms has entered the market with WiMAX at 40Mbps in cities.

That type of competition has really changed the original DoCoMo walled garden into super-fast open data.

For other countries, we can dream, if only...

Very interesting IIC session

Just back from a fascinating session at IIC, with a preview by the CRTC chair on their net neutrality ruling. A reminder, this is an incumbent and regulator get-together generally, so it was interesting to see three challengers to telecoms incumbents on the panel with Chris Boam (Verizon), the fairest-minded of network operators. They were Chris Libertelli of Skype, Michael Geist of UOttawa, and the CBC rep, who just spent 16 years with Sky in the UK and revealed his independence by praising the dread Ofcom (which Sky has trash-talked for 6 months!).

So, to highlights, and lets begin with the Canadian ruling in detail. CRTC has essentially challenged both wired and wireless operators to cause a consumer complaint on blocking apps. The wireless part is somewhat new. It will require a complaint to turn this general ruling into individual case-bound rules. Geist pointed out that we could get either too many complaints (every time your connection times out you complain, as when Videotron resets my connection at noon each day), or too few, as consumers are not sufficiently empowered to sort through evidence. I should have thought CIPPIC or another consumer friend will bring a case - perhaps against wireless - soon. Certainly the fixed ops' questions revealed their continued intransigence (Telus wierdly thinks its new 3.5G network will somehow be quicker than Japan's 4G e-mobile!). So expect fireworks this winter.

The panellists all seemed to agree that case-by-case decisions by regulators will outpace any legislative approach - and that co-regulation will be faster still (collated reporting and notice on new apps, so that regulators can issue 30-day cease-and-desist). Michael Geist asked whether the throttling practices revealed - Bell's 4.30pm-2am 'peaktime' for instance - could be maintained in the face of the notice.

When it came to praising solutions adopted, some bizarrely praised Ofcom, which is case so far unproven, and no-one chose to mention the Norwegian working solution. Ah well, c'est la vie - and net neutrality is only a part of fast broadband, after all.

An excellent panel, well worth a cycle ride through the fall colours!

Michael Geist on CRTC ruling - implications

Michael has reflected on the CRTC ruling, and offers a glass half-full analysis of what CRTC mandated:

1. 'adopted a new test to determine reasonable traffic management practices. Where a consumer complains, ISPs will be required to describe their practices, demonstrate their necessity, and establish that they discriminate as little as possible. The CRTC added that targeting specific applications or protocols may warrant investigation and slowing down time-sensitive traffic likely violates current Canadian law. '

2. 'rejected arguments that the market would ensure ISPs provide adequate disclosure on how they manage their networks. Instead, it mandated full disclosure of traffic management practices, including information on when they occur, which applications are affected, and their impact on Internet speeds.'
3. 'banned the use of personal information obtained through deep-packet inspection for anything other than traffic management purposes. By also prohibiting the disclosure of such information, the commission ensured that inspecting user traffic cannot be parlayed into marketing opportunities.'

He then offers three suggestions for improvement without needing new legislation:
'Critics of the CRTC approach rightly note that the onus falls to consumers to compile evidence of traffic management practices that run afoul of the commission's test and file complaints. [Clement] can go several steps further by asking the CRTC to conduct regular compliance audits of ISP traffic management practices and by providing financial support to consumer groups who wish to conduct their own investigations. Clement could incorporate net neutrality requirements directly into the [analogue TV refarmed spectrum] bidding process, effectively mandating neutrality into new wireless services. Finally, Clement should acknowledge that net neutrality concerns are largely a function of an uncompetitive marketplace that allows ISPs to leverage their positions without fear of losing customers.'

Fix that and things might improve - though I have long maintained no ISP has incentives to allow free P2P hosting.

IIC 40th anniversary conference - net neutrality panel

Off to the IIC 40th annual conference today - generally net-illiterate and very much focussed on old-style broadcast and telecoms, but the panel promises a scent of the Beltway, with Chris Boam (Verizon), Mike Nelson (Georgetown and ex-IBM) and Robert Pepper (Cisco) - somewhat balanced, in contrast to the Ofcom Group 3 panel last November! More later.

Pirate Party MEP explains EParliament cave-in

Blogging from inside the Conciliation Committee, Christian Engstrom gives us the horse's mouth view of the negotiations.