EU passes net neutrality laws that leave 'fast lane' loopholes

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Legislation designed to protect net neutrality and abolish mobile phone roaming fees has been passed today by the European Parliament. These new rules -- hotly debated for two years by EU representatives -- are now finalised and will soon cover the entire region, including the UK. While the end of expensive holiday phone bills won't take place until 2017, the updated internet protections should come into effect fairly quickly. Such a moment ought to be cause for celebration, however many in the technology industry are now concerned about loopholes that could enable internet "fast lanes." Today's vote included amendments that would've sealed up those weaknesses -- but it seems the Parliament was happy enough with the wording and pushed ahead regardless.

Fast lanes and specialised services

Fast lanes occur when larger, well-funded companies pay internet service providers (ISPs) for priority access -- this makes their site or services load faster for customers, while putting their rivals, especially young internet startups, at a disadvantage. The most notable example is Netflix, which paid a number of major US ISPs last year to keep its services running smoothly. The practice is generally considered to be in direct opposition of net neutrality -- the idea that every piece of data should be treated equally online.

When some of the new proposals were announced in June, the European Commission said citizens would never be "unfairly blocked or slowed down." It also condemned "paid prioritisation," which is another term for internet fast lanes. However, the final rules that were passed today make an exception for "specialised services of higher quality." This passage is supposed to protect, among others, public services that require a stable, lightning-fast connection -- remote surgery, for instance, or a drone feeding live video back to firefighters. But many are concerned that the definition of "specialised services" is too vague and will enable ISPs to create an imbalanced, two-tiered system.

Barbara van Schewick, a law professor at Stanford and a director at the school's Center for Internet and Society, has criticised the exception as being "too broad." The Center has also published an open letter signed by more than 30 internet startups, including Netflix, Reddit and Vimeo, as well as investors and thought leaders including World Wide Web inventor Tim Berners-Lee, which cites almost identical concerns. The group, and also van Schewick, believe three other aspects of the law require further clarification; zero-rating, class-based traffic management and "impending" traffic congestion. They urged the European Parliament to make these changes, but it seems their efforts have been in vain.

Zero-rating

To encourage customers to adopt a specific service, ISPs will often use a tactic called "zero-rating." They'll announce that the relevant mobile app doesn't count towards your monthly data cap -- it's usually owned by the ISP in question, although an outside developer will sometimes pay for its app to receive similar treatment. These "free data" deals are attractive to customers with restrictive contracts, but they're actually another two-tiered system in disguise. Imagine if BT, for instance, announced that streaming BT Sport over 4G was free for BT Mobile customers in the UK. While useful for football fans, it would discourage them from trying similar services -- even if they're better designed and offer superior coverage. The practice merely discourages competition and makes it difficult for new, lesser-funded companies to grow. Europe's stance on zero-rating isn't specified in the new rules, so it's legality in Europe is now unclear. If the law is tested and it's discovered they fall outside the regulations, zero-rating could become more prominent.

Traffic control

Another potential loophole concerns class-based traffic management. Under the new rules, ISPs have permission to speed up and slow down specific types of services. These categories can be set by ISPs and are merely defined by their technical requirements. So they could be written in a way to cover all music streaming services, for instance, or Skype-style video calls. The opportunity for abuse is slimmer here, but it still exists. If an ISP is developing a TV and movie streaming service, they might want to throttle all of their soon-to-be competitors that are already on the market. After all, if users are frustrated with the performance of those services, they'll then be more likely to try the ISP's alternative.

Net neutrality advocates have also expressed concerns about the definition of "impending" traffic congestion. ISPs have the power to manipulate networks during busy periods -- like a traffic officer at a busy intersection, sometimes you need a hands-on approach to fix a particularly messy jam. The controls available to providers have been written carefully to restrict foul play -- but they can also be used when traffic is "impending," which critics claim is another loosely defined term. Without knowing exactly what qualifies as "impending," ISPs could, in theory, use these powers whenever they like for commercial gain.

A missed opportunity

Some members of the European Parliament wanted to introduce amendments that would have clarified these loopholes. They formed part of today's vote -- if politicians had supported them, the law would have been adjusted and sent back to the European Council for review. It would have led to further negotiations -- enough of which has occurred already -- but with an absolute time limit of six weeks. A campaign called Save The Internet has been trying to raise awareness about the issue and encouraged citizens to contact their European representative before the vote. Today's decision, however, means that those efforts were ultimately in vain and the chance for clarification has been lost.

The intention behind the new rules is admirable. The weakened regulations that have been passed, however, represent a missed opportunity for Europe to create an ironclad defence around net neutrality. It's unclear just how vulnerable the loopholes are, however, and how keen ISPs will be to exploit them. It could take a high profile case like Netflix before we know how successful Europe has been in protecting the free and open web.

[Image Credit: Michael Gottschalk/Photothek via Getty Images]
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