Friday, November 12, 2010

Net Neutrality Summit

I had the privilege of being an invited delegate at the EU Summit on 'The Open Internet and Net Neutrality in Europe' in Brussels yesterday.  The morning sessions were held at the Commission's Charlemagne building and the afternnoon sessions at the EU parliament.

That the lunchtime walk between the two, in freezing driving rain, proved something of a contrast to the wonderful sunny netherworld presented by many of the speakers. The EU was lauded as leading the world in staying out of the way of the market and the, if not perfect, then the best of all possible internets evolving before our very eyes.  Seriously there is a wonderful internet universe out there which will only get better if the EU has the sense to avoid regulating the companies delivering it.

It was a bit like a variation on Groundhog Day as I listened again and again to the same message pouring out of the mouths of speaker after speaker from Cisco, AT&T, Alcatel Lucent, DigitalEurope, Ofcom, GSMA, Cable Europe, Telefonica, NokiaSiemens and others. Actually it is unfair to include Sigurd Schuster of NokiaSiemens. He did at least explain why, in a congested, network the laws of physics dictate the limitations of the technology. Sadly MEP Malcolm Harbour, who was chairing that session, immmediately alighted on Mr Schuster's slides claiming they were a great demonstration of the reasons why the EU needed to stay out of the way of the market and avoid regulating.  Getting back to the message that was repeated by the corporate and trade body speakers, though, it amounted to:

1. There is no anti-consumer or anti competitive behaviour in relation to the internet
2. The is no evidence of anti consumer or anti competitive behaviour
3. Concern about such nefarious behaviour is purely theoretical and scaremongering by extremists
4. All regulation has costs
5. Regulators should focus on 'transparency' and 'consumer empowerment' as cures because regulation is not free
6. The US was wrong, WRONG, WRONG to commit to net neutrality and an open internet
7. The EU can lead the world by not making the same mistake and by refusing to regulate
8. Net neutrality is not compatible with enabling network providers to innovate
9. The Net is brilliant but it will only continue to be so if the EU leads the world by not regulating
10. All is rosy the netherworld of the internet, so don't spoil it! Only extremists want net neutrality.

Ok, so I may be laying it on a bit thick but honestly, having hit the road at 4am to catch the Eurostar and battled the weather all the way to the Commission, only to listen to this shrill corporate claptrap (again, in fairness some were significantly more shrill than others), I felt like cheering when Chris Marsden rose as the sole voice of reason just before lunch. He suggested there was a touch of the three wise monkeys about the message being delivered by other speakers and the desperate collective unanimity, to convey the notion that there is no problem, should raise suspicions.  (Actually even Bernd Langeheine, Director DG INFSO, who had been chairing the session, had introduced Dr Marsden by suggesting there had been an "alarming consensus amongst the speakers so far.").  The good doctor pointed out that vague, broad promises about an open internet and requiring "the consumer to be at the heart of the debate" don't cut the mustard.  The devil is in the details.

Four years ago, Charles Dunstone, chairman of TalkTalk said:
“We shape traffic to restrict P2P users.
"I get hate mail at home from people when that means we restrict their ability to play games."
I’ve got 2 people that have said they’re going to kill me as a result of not allowing them to play certain games.
From our point of view, it’s not about security, it’s about trying to figure out what type of traffic it is.”
I fully understand the need for traffic management on modern congested networks but that is not traffic management for a best services internet or to manage congestion or for security.

And frankly on the notion that regulators already have the tools to step in if there is ever a problem regulators saying "We have received no complaints" is completely different to "we have not listened to any complaints." I'm not sure in the UK whether Ofcom can actually listen to complaints from consumers as I believe it is only ISPs that have the right currently to make a formal complaint. Absence of evidence is not evidence of absence and there is a serious need for scrutiny and collection of evidence on the reality of internet services in Europe.  After all if there is no problem there will be nothing to hide.  There is a desperate need for robust independent research and little or no direct empirical evidence on network providers practices at the moment.

The thing is I understand the genuine concerns of corporate actors on this.  Regulating net neutrality is difficult and there is a fair chance that policymakers would screw it up, as they do with much tecnhology regulation. When John McCarthy of Level 3 Communications Limited says his biggest fear is having to tell smart techies who have come up with brilliant technology to stop work until he can consult his lawyers on the legality of the innovation, I share that concern.  For goodness sake we're already there with intellectual property laws.  When Rober Pepper of Cisco says

1. Consumer/citizens should have access to the networks, goods, services and applications they want
2. There should be investment in the network
3. The network should be fit for purpose to dynamically support different kinds of applications
4. We want managed services in addition to the bests efforts internet

I largely agree with him though I suspect we might disagree on some of the details of items 3 and 4.  When he says we need traffic management on current congested networks to give latency sensitive applications like P2P VOIP priority over email, I agree with him. But that's doesn't seem to be what Charles Dunstone meant when he said TalkTalk shape p2p traffic.  When Robert Pepper says caching at the edges of the network will improve some video services (eg BBC iPlayer) but that caching doesn't work for other video services like teleconferencing or Skyping which need high bandwidths, I agree with him.  When he says the net neutrality debate is too often a debate of extremes and false choices I agree with him.

When he then says "extremists would have us freeze the internet in time" we part company because he seems to be saying one group of extremists is wrong and the other is right. Whereas the devil is in the details.  When he says we should avoid regulation and instead focus on transparency and consumer empowerment we again disagree for the reasons I outlined in my submission to the EU consultation. Transparency and essentially meaningless phrases like 'conumer empowerment' are never going to be enough in an unequal world.  And as Jeremie Zimmerman said later, what matters is the harm being done not transparency of the infliction of harm, which if it is accompanied by lack of action to prevent and/or repair the harm is meaningless; and when switching suppliers is incredibly difficult, even in that supposed home of the most competitive ISP market in the EU, the UK.

When Jean-Jacques Sahel, Director, Government and Regulatory Affairs at Skype says the open character of the Internet is the foundation of all the benefits delivered at all levels of the internet value chain from consumer to ISP to innovators for the past 20 years, I also agree with him. When he says also we are heading towards a future of walled gardens or a collection of hinderednets I have to agree with him there too and this will considerably diminish the value of the Net.  There are already problems in Europe.  Skype is prohibited or subject to heavy surcharges on many services.  All mobile operators in France block Skype.  The EU mobile network is crippled and on this front the EU is getting left behind.  Traffic management is not inherently bad when it is used for appropriate reasons eg to manage congestion but it should not be abused for commercial reasons.  Yet it is being used in that way.  When you make discrimination for commercial gain possible it will happen.  That is not just a theoretical concern.  Skype is being blocked by mobile operators in France but there is no evidence of this as it is really difficult for independent researchers have access to the required data to generate sufficiently robust objective evidence to that effect.

The sad thing about the simple "there is no problem, do not regulate" corporate message is that they are selling such a simple story to keep the policymakers out of their hair, yet the devil is in the details and the Jean-Jacques Sahels and Robert Peppers of the world know this.  But when the debate is dominated by the stories being told yesterday I reserve the right to maintain my concerns about the direction of travel on the whole notion of net neutrality in the EU.

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