Net Neutrality: What’s It All About?

Net neutrality is the principle that Internet Service Providers (ISPs) treat all internet data equally and do not discriminate or charge differently depending on the user, content, website, platform, application or method of communication. Below Andrew Jerrard, Solicitor in Commercial Services at Coffin Mew, explains for Lawyer Monthly.

The principle is intended to stop ISPs intentionally blocking, slowing down or charging money for specific online content. Recent examples of ISPs doing so include:

• AT&T, Sprint and Verizon blocking a Google mobile-payment system that competed with a similar service all three companies had an interest in developing;
• Comcast slowing and blocking traffic to BitTorrent, a peer-to-peer protocol for sharing and downloading files; and
• Three restricting video quality to standard definition and requiring purchase of a Data Passport to tether for customers roaming in the EU and removing tethering/hotspot allowances for new and upgrading customers.

What are the arguments for and against net neutrality?

Supporters argue that keeping the internet an open-playing field is critical for innovation and investment in technologies, as these are dependent on the ease of entry and equality of data management. Stifling new technologies by requiring businesses and users to pay a premium is not democratic or beneficial to society.

Opponents argue that ISPs need to raise money to invest to improve infrastructure. They point to the pressure of increasing data traffic, reducing speeds for users and greater demand caused by:

• More people having Internet access;
• More use of videos, downloads and streaming (YouTube, Twitch, Netflix); and
• higher-quality content (4K).

They claim that ISPs will be able to make a return on their investment more quickly through premium services and are therefore more likely to roll out improved infrastructure to benefit all customers with improved and better service offerings.

What’s been going on in the US?

In the US, net neutrality has long been a hot topic. There is less competition among ISPs than in the EU and more demand on the Federal Communications Commission (FCC) to intervene and enforce net neutrality.

President Obama enacted rules imposing net neutrality in 2015. After a long-fought legal process, the FCC, headed by Ajit Pai (a former Verizon lawyer appointed by President Trump), voted on and repealed the rules in June 2018, despite a U.S. Senate vote to uphold them.

Leading tech companies such as Google, Microsoft and Netflix have publicly weighed in favouring net neutrality, along with some celebrities including two of the Avengers, Mark Ruffalo and Chris Evans. Several states have passed or intend to pass net neutrality laws, although it is widely anticipated that companies opposed to the principle will file lawsuits to declare the laws invalid.

What is the EU position?

The Regulation on Open Internet Access (EU 2015/2120) grants end users’ access to online content and services without discrimination or interference by ISPs based on location, origin or destination of the information, content, application or service (Article 3(1)) and provides that ISPs shall treat all traffic equally (Article 3(3)).

ISPs may however implement traffic management measures that are transparent, non-discriminatory and proportionate as long as they are not:

• Based on commercial considerations but on objectively different technical quality of service requirements of specific categories of traffic;
• Monitoring the specific content; and
• Maintained for longer than necessary.

There are some exceptions allowing an ISP to disapply net neutrality as necessary, and only for as long as necessary, in order to:

• Comply with EU legislation or national legislation that complies with EU law, including orders by courts or public authorities vested with relevant powers;
• Preserve the integrity and security of the network, services provided via that network, and the terminal equipment of end-users; or
• Prevent impending network congestion and mitigate effects of exceptional or temporary network congestion, provided equivalent categories of traffic are treated equally.

What happens if an ISP breaches the Regulation?

Member states are required to set applicable penalties for a breach. National Regulatory Authorities monitor and enforce the rules in the EU. Ofcom is the UK’s authority.

For example, Three was recently investigated and has confirmed it would withdraw restrictions slowing peer-to-peer and virtual private network traffic for customers roaming in the EU and on the use of handset SIMS in dongles and mifis.

Will Brexit change things?

Possibly – depending on what the Government decides post-Brexit. As EU law is being adopted into national legislation, it is likely that net neutrality will be retained.

Your opinion?

Which side a person takes comes down to their political beliefs and whether they think that big telecoms providers will offer better and more flexible packages to businesses and consumers without net neutrality rules. Net neutrality is positive in ensuring equality, but I would like to see narrowly-worded carve-outs giving priority for data traffic benefitting the public and infrastructure, for example emergency services, accident prevention and transport-flow services.