After being besieged by telecom lobbyists, the European Union’s communications regulatory body, BEREC, has issued "net neutrality" guidelines that let ISPs prioritize certain services and throttle whole classes of traffic, like VPNs, BitTorrent, or videochat. The proposal is in a final public comment period that ends on July 18.
Under the proposal, ISPs are instructed to discriminate against classes of traffic when managing their networks. The rules appear to be designed to prevent commercial considerations when deciding what to throttle—and that’s a good thing—but the wording of the regulation could lead to forms of discrimination that are even more far reaching. For example, peer-to-peer traffic could be throttled before traffic from streaming video services, even if the peer-to-peer service is in fact using less bandwidth. VPN traffic could be throttled simply because ISPs wouldn’t be able to determine what category it is.
And this mass throttling could be done as a standard operating procedure, not just for times when there is excessive congestion on a network. Under the rules, ISPs can engage in class-based throttling whenever they believe congestion is "impending," which, if you consider the chaotic nature of the Internet, could really be whenever.
Another major loophole in the rules is the ability for ISPs to engage in zero rating, a practice that has been around in Europe for a while and is a big part of why online innovation has been sluggish there. Under zero rating, ISPs exempt their own apps and services, and those of their partners, from monthly data caps. These arrangements incentivize ISPs to reduce data allowances (EU ISPs that engage in zero rating give, on average, 50% less data each month for the same price) and they give ISPs more control over what we do online.
These loopholes allow ISPs to violate net neutrality’s basic principles, and they will ensure that Europe’s Internet continues to lag behind the rest of the developed world. Innovation will stall under the uncertainties created by these provisions, and freedom of expression will be limited as ISPs cement their gatekeeper status on the Internet in the EU. Europe is the world’s largest economy. What happens to the Internet in Europe profoundly affects Internet freedom around the world.
It doesn’t have to be this way.
So far, lobbyists for ISPs have been the dominant voices in shaping these rules. Europe’s biggest telecom companies, like Deutsche Telekom, Orange, and Vodafone, lobbied hard to get the EU Parliament to punt many of the most important decisions to BEREC, an unaccountable regulatory bureaucracy. The loophole-filled guidelines that BEREC released make it clear that the lobbyists were successful. They got more out of BEREC than they ever would have been able to get if these decisions were made in the original legislation.
Now it’s our turn. BEREC has opened a comment period to hear from the public before they give their final approval. This comment period only stays open for a matter of weeks, so if you want your voice heard you need to act quick. You do not have to live in the European Union to take action.
This is our chance to let them know we want strong net neutrality rules. If enough of us speak up, we can beat the lobbyists and get these loopholes fixed. It’s how real net neutrality was won in the United States, and it’s how India defeated Facebook’s offensive "Free Basics" zero-rating scheme and passed net neutrality rules instead. We can do the same in Europe, but we have to act now.
If you run a website, blog, or Tumblr, you can be even more effective at fighting these bad net neutrality guidelines in the EU by running our banner widget on your site. Simply embed this one line of code on your page. You can customize look and feel, or the text, if you want.
For more background on the loophole in the EU’s net neutrality proposal, see these two pieces we’ve posted over at Medium: