What Prospects for Net Neutrality in Europe?

Last week was a momentous one for Internet law – first on Wednesday the District of Columbia Court of Appeals overturned much of the Federal Communications Commission network neutrality regulations, then on Friday the President of the United States decided to tighten the rules governing secret surveillance of electronic communications. The latter decision is highly contentious, with many advocates for privacy claiming it does very little to restrict government surveillance of US citizens and nothing for foreigners – such as we Europeans. That sets a precedent for the British government to make even more minor procedural changes, and for the respective agencies in US and UK to continue to swap the metadata that each has gathered on each other’s citizens. That is government control of the Internet secured by gathering private companies’ records of our metadata, whereas the net neutrality ruling in the US sets a precedent for the private censorship by the same Internet access providers –itself authorized or at least not prevented by the same governments. The government actively has tried to shelter Vodafone, Verizon, British Telecom and other IAPs from the ‘reputational damage’ caused by their spying on users’ surfing.

There are three lessons from the net neutrality defeat for the FCC, and therefore Obama. The first is that it is extremely difficult to separate out individual items in communications policy: the National Security Agency and other security services need the legal and extra-legal cooperation of the IAPs, and the IAPs need regulatory backing for their decisions to speed up and slow down traffic on the Internet for their own commercial benefit – breaching net neutrality. In both cases, users’ rights to privacy in their browsing are trampled underfoot – most egregiously when British Telecom and behavioural advertising company PHORM intercepted traffic of 30,000 users without any attempt to secure their consent. The government had connived in their deployment of the technology (as I detailed in pp77-79 of my book on Net Neutrality) and was later dragged to the steps of the European Court of Justice before amending their privacy laws to stop such an event happening again.

The second is that electoral promises are hard to keep when Congress does not support legislation. Just as Obama failed to close the Guantanamo Bay detainee camp which he had explicitly promised in 2007/8 in his first Presidential campaign, so the failure on net neutrality breaks his main technology policy promise from 2007. In fact, it was the developed policy of his friend Lawrence Lessig (his junior professorial colleague at Chicago when they both taught constitutional law in the early 1990s) and Lessig’s brilliant protege Tim Wu, the originator of the term net neutrality and its main academic proponent. Lessig warned in 2010 that Obama was cooling on net neutrality because of political opposition from telecoms lobbyists and their sponsored Congressmen. The FCC took over two years to issue and print its net neutrality Order (just before Christmas 2010), which has then been litigated for over three years. That is not five years wasted, however, as legislation and regulatory proceedings may take many years, but various net neutrality requirements had in the meantime been inserted into the telecoms companies’ mergers. That remains the case today: Comcast, the largest cable company, is subject to net neutrality requirements until 2017 as a result of its merger with NBC-Universal, the media company, in 2011, as Ellen Goodman points out. However, the big telephone companies can act freely as their net neutrality merger requirements imposed in 2006 expired years ago – and AT&T last week started that process in earnest.

The third is that technological progress is very difficult to regulate in the public interest when private market forces are pushing so hard for censorship for profit. British Telecom wants to charge content companies to carry video, as does Vodafone, claiming that they will roll out fixed and mobile high speed Internet more quickly if they are granted this ability to put a toll lane on the Internet. The technologies they use are dual-use: they can be used for censoring content in the public interest, for instance spam or child pornography, but also to control content to charge users or content companies more for it, as when access to BBC iPlayer fails in the evening ‘congested’ period on the Internet. Technologies are always difficult to regulate, private profit in a constant struggle with user rights to freedom of expression, and privacy (Dr Ian Brown and I explain this in detail in our recent ‘Regulating Code’).

All these forces face European leaders too. The UK minister for the Internet (Ed Vaizey) has declared himself in favour of net neutrality but also in favour of higher speed toll lanes, which is contradictory. The European Commissioner began her term by drawing a big ‘heart sign’ on her notes and explaining that she loved net neutrality – but has failed to enforce until now. But Europe is not the United States, and the litigation and Congressional deadlock there does not apply here. A pan-European proposal for enforcing net neutrality was provoked by national legislation in Netherlands and Slovenia. This new Regulation is called ‘ConnectedContinent’ and may become law in 2014, though a new Commission and Parliament may delay or even derail the process.

The United States has failed to properly enforce net neutrality due to its attempt to deregulate carriers with an a la carte approach – keeping net neutrality but removing the requirement for monopolies to open access to competitors. In Europe, monopolies still have strict regulation to allow competitors, and there is no obvious reason why net neutrality would be successfully challenged by the courts as exceeding European legal powers. Just as extra-legal Internet snooping is disapproved in mainland Europe, so private censorship by the same Internet companies is unpopular, and telecoms lobbying may not prevent the imposition of a real net neutrality law. That would then lead to 28 countries trying to implement it. Ed Vaizey may soon have the chance to correct his contradiction.