From ‘End-to-end’ to the ‘Rule of Law’: Should Network Neutrality be Enshrined into Legislation?

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Over the past month, I have been actively involved in the organisation of the “Multi-Stakeholder Dialogue on Network Neutrality and Human Rights”, which took place on 29-30 May in Strasbourg, under the auspices of the Council of Europe.

This two-day long event has summoned some of the most renowned network-neutrality experts at the European level and provided a unique occasion to share opinions and concerns on an equal footing.

The main purpose of the conference was to shed light on the human-rights dimensions of the network neutrality debate. Notably, the participants scrutinised the underlying tension between Internet-traffic-management (ITM) practices put in place by Internet Access Providers (IAPs) and the full enjoyment of freedom of expression and the right to private life.

By all means the Council of Europe offered a particularly appropriate environment to hold such an all-important debate.

Network Neutrality in a (Quite Simplified) Nutshell

Network neutrality is a catchy and intriguing formula. However, the absence of a clear definition, as well as its multifaceted nature, has led the path to a plethora of uses and misuses of this appealing expression. In the words of Professor Christopher Marsden, “network neutrality is a deceptively simple phrase hiding a multitude of meanings”.

Although this concept has been popularised by Professor Tim Wu, the origins of network neutrality have to be found in the seminal paper “The End of End-to-End” by Professors Lawrence Lessig and Mark Lemely. Indeed, the network neutrality debate finds its conceptual bases in the end-to-end (E2E) principle, one of the fundamental principles of the Internet architecture, whereby the intelligence of the network shall be found on its edges, not within the network itself.

According to the E2E principle, the Internet shall be considered as a general-purpose network that gives “responsibility for the integrity of communication to the end systems”. Hence, such principle ascribes to end-users (which are considered as the “edges” of the network) an active role while considering the communications network as a passive and “dumb” infrastructure.

However, due to the exponential growth of the Internet and to the shift of the Internet community from a restrained group of technical experts to a heterogeneous and less-technical-erudite gathering of users, some form of traffic management has become essential in order to foster a “safe” online environment, preventing the diffusion of noxious material such as SPAM and vira.

Indeed, it should be noted that IAPs enjoy the power to manage Internet traffic by blocking, filtering or throttling specific data flows. Such measures may be necessary for technical reasons such as to impede the diffusion of harmful material or to handle network congestion, but may be also prescribed by law to tackle specific issues such as the diffusion of paedopornografic material.

However, ITM techniques may be also used to prioritise the diffusion of content, applications and services with which IAPs vertically integrate – such as specific video-on-demand platforms – or to “slow down” competitors.

Furthermore, in order to select the “data-packets” to prioritise, IAPs may utilise intrusive and pernicious techniques such as the notorious Deep Packet Inspection (DPI). Such technique has been widely criticised, being considered as the cyber version of a post officer who deliberately analyses the content of every letter in order to know which one should be delivered first.

In a nutshell, the network neutrality debate insists on the “trilateral” relation between those ISPs that manage the various networks composing the internet (i.e. IAPs); those ISPs that provide services, applications and content through the Internet; and end-users.

The aim of the network neutrality principle should not be the prohibition of ITM practices in abstracto, but rather to impede that IAPs abuse of their gate-keeper position. The goal of the network neutrality principle is indeed to empower end-users, fostering non-discriminatory and transparent ITM measures that (i) do not interfere with the enjoyment of basic human rights such as freedom of expression and the right to private life in an illegitimate, disproportionate and unnecessary fashion; (ii) and do not put fair competition between ISPs in jeopardy.

When in Europe, do as the Europeans do.

The Body of European Regulators of Electronic Communications (BEREC) and the European Commission have recently highlighted the existence of a wide array of traffic management practices resulting in restrictions.

However, in spite of the close relationship between the enforcement of the network neutrality principle and the full enjoyment of freedom of expression and the right to private life, the EU approach to network-neutrality has been quite mild so far, and the current telecommunications framework has been considered as insufficient to grant an open and neutral Internet environment.

Indeed, on the one hand, the actual regulatory framework requires that restrictions to end-users access to and use of online applications and services be “in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms” whilst, on the other hand, it does not specify how fundamental rights should be applied to network neutrality disputes.

In addition, the BEREC has explicitly claimed to have no competence to intervene in network neutrality disputes from a fundamental rights perspective.

Nevertheless, zooming out of the EU frontiers, another European approach becomes visible. Indeed, it should be noted that the Council of Europe has been charged by its 47 Members with the task of “developing human rights policy principles on ‘network neutrality’”. In effect, since 2010, the Committee of Ministers of the Council of Europe has enshrined the network neutrality principle into a specific declaration, according to which “[u]sers should have the greatest possible access to Internet-based content, applications and services of their choice, whether or not they are offered free of charge, using suitable devices of their choice. Such a general principle, commonly referred to as network neutrality, should apply irrespective of the infrastructure or the network used for Internet connectivity. Access to infrastructure is a prerequisite for the realisation of this objective”.

Liberté, Égalité, Neutralité?

The aforementioned declaratory statement has probably represented a source of inspiration for those European countries which have decided to be proactive in the enforcement of Internet openness and neutrality within their national jurisdictions.

Indeed, after Norway put in place a co-regulatory approach to network neutrality in 2009, the Netherlands and Slovenia promulgated legislation on the matter, and France is currently assessing the opportunity to legislate on Network Neutrality.

A recent opinion issued by the Conseil National du Numérique (CNNum) – the French Digital Council, an advisory body – encouraged the French Parliament to adopt such legislation and, according to Benoît Thieulin, the President of the CNNum, “today, network neutrality represents the basis of freedom of expression and innovation”.

Such an approach is probably based on the assumption that competition amongst ISPs will not be able to provide a neutral Internet ecosystem. Moreover, the intervention of the legislator is supposed to avoid that state control be replaced by private censors.

However, the main challenge will be to find a suitable approach to encourage ISPs to do good in the future. Indeed, it should be kept in mind that the network neutrality debate is a thorny and multifaceted one and hold promise to hide many slippery slopes on its path.

In order to tackle network neutrality in a proper fashion, legislators and policymakers need to have a clear understanding of this pivotal issue. What is at stake is their citizens’ freedom.

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