Why Europe’s net neutrality plan is more controversial than US rules

The European Parliament is scheduled to vote on net neutrality rules on Tuesday, and at first glance the proposed regulations appear very similar to ones already in place in the United States.

Both the European proposal and the US rules prevent Internet service providers from blocking or throttling traffic, and they impose a ban on “paid prioritization.”

In both the EU and US, the blocking and throttling rules have exceptions for reasonable network management, and the paid prioritization ban has an exception for what are known as “specialized services.” Both the EU and US also allow zero-rating, a practice that exempts certain online services from counting against data caps.

Yet the US rules were widely acclaimed by net neutrality advocates, while the EU proposal is being heavily criticized by advocates, tech companies such as reddit and BitTorrent, and World Wide Web inventor Sir Tim Berners-Lee. Why is that?

Let’s examine the four major parts of the EU proposal that net neutrality advocates are trying to change and compare these to the US rules. To help illuminate the differences, Ars spoke to Barbara van Schewick, a law professor who directs Stanford’s Center for Internet and Society. Van Schewick also wrote an article criticizing the EU proposal last week.

“Fast lanes” and specialized services

The EU proposal (full text download) outlaws paid prioritization, or “fast lanes,” which would let online service providers pay for greater-than-normal access to consumers.

But there’s an exception for “specialized services,” defined by the EU as “electronic communication services other than Internet access services, for which specific levels of quality, that are not assured by Internet access services, are necessary.” Examples given in the EU’s description of its rules include IPTV, high-definition videoconferencing, and health care services such as telesurgery.

In the US, the Federal Communications Commission’s net neutrality rules say that specialized services—including facilities-based VoIP offerings, heart monitors, or energy consumption sensors—may also be offered without violating the ban on paid prioritization. While these are Internet Protocol services, they’re treated separately from general Internet access.

Yet the EU proposal is much worse than the US rules, van Schewick argues. For one thing, the FCC has an explicit prohibition on using the specialized services exception to evade the spirit of network neutrality.

“The Commission expressly reserves the authority to take action if a service is, in fact, providing the functional equivalent of broadband Internet access service or is being used to evade the open Internet rules,” the FCC order said.

That provision makes it less likely that ISPs in the US will be able to use the specialized services exemption to sidestep the fast lane ban, van Schewick told Ars.

The FCC also said that because specialized services are not the same as general broadband Internet access, they cannot be offered over the same Internet access service. To a consumer, these IP-based services may look the same as Internet access in general, but they would use capacity reserved for them only.

The EU proposal doesn’t require separate capacity for specialized services and general Internet access. Instead, EU ISPs would be required to provide enough capacity so that specialized services can be offered without slowing down general Internet access.

Requiring separate capacity for specialized services is preferable to having them use the same capacity as general Internet access, van Schewick said. In her article, she said that a specialized services provision “allows applications to emerge that would not be able to function on the open Internet because they need special treatment that the open Internet cannot provide.”

But she worries that the EU definition is too broad, allowing ISPs to claim just about anything is a specialized service. Big-pocketed online services companies would then be able to easily buy greater access to consumers than startups, she said.

Zero-rating

Just like the FCC’s net neutrality rules, the EU proposal doesn’t ban zero-rating or “sponsored data,” in which certain content doesn’t count against a user’s data cap. An ISP or mobile carrier could favor its own content by zero-rating it or accept payments from other companies that want zero-rated data.

The EU said that “regulatory authorities will therefore have to monitor and ensure compliance with the rules.” That’s similar to the FCC’s statement that it will monitor zero-rating and take action if any specific practices harm consumers or competition. The FCC says it will judge on a case-by-case basis whether a sponsored data plan violates its “no unreasonable interference/disadvantage” standard, which is meant to prevent ISPs from reducing consumer choice.

Van Schewick says the FCC approach is superior because it sets out a process in which consumers or companies can bring complaints against ISPs. (At the same time that it enacted net neutrality rules, the FCC reclassified broadband providers as common carriers, allowing many more types of complaints.)

The EU rule could preempt existing rules in specific countries, such as a ban on zero-rating in the Netherlands. Van Schewick and other net neutrality advocates are calling on the EU to include language allowing individual European nations to adopt additional regulations restricting or banning zero-rating.

As currently proposed, net neutrality rules would let an EU ISP exempt its own online video service from data caps while counting competing video services against its customers’ data limits, van Schewick said. An ISP could also demand payment from companies that want their services to be exempt from data caps.

“What matters is whether the ability to use applications of your choice is materially reduced in practice by reason of this policy,” she said, pointing out that online video services can blow through mobile data caps pretty quickly.

Whereas the “FCC rule makes potentially all cases subject to regulation,” there would likely be very limited circumstances in which a zero-rating practice in Europe would be stopped, she said.

Still, carriers in the US are implementing zero-rating without reprisal. T-Mobile US has exempted many online music services from its high-speed data limits, while AT&T is charging businesses for the right to deliver data that doesn’t count against its customers’ caps.

“Classes” of Internet applications

Van Schewick and others also criticize a portion of the EU’s net neutrality proposal that would let ISPs treat certain types of applications differently from others.

While the EU proposal instructs Internet providers to “treat all traffic equally,” it also lets providers implement “reasonable traffic management measures” based upon the “different technical quality of service requirements of specific categories of traffic.”

In short, ISPs would be allowed to treat one type of application (say, online gaming) different from another (such as file sharing or voice). The proposal says that ISPs must make these decisions transparently, in non-discriminatory fashion, using sound technical analysis—not based on any commercial considerations.

The FCC’s rules against blocking and throttling also have an exception for “reasonable network management.” But van Schewick points out that the FCC’s non-discrimination rule specifically says that ISPs must not discriminate against classes of applications.

“The no-blocking rule prohibits network practices that block a specific application or service, or any particular class of applications or services, unless it is found to be reasonable network management,” the FCC rules say.

The FCC defines reasonable network management vaguely as practices that are “primarily used for and tailored to achieving a legitimate network management purpose.” To be “reasonable,” a practice has to be justified with technical concerns and not business ones.

Net neutrality advocates say the language in the EU proposal gives ISPs too much leeway in how they manage different types of applications.

Van Schewick argues that ISPs could easily misclassify traffic.

“[U]ntil 2010, many ISPs in Canada used deep packet inspection technology to single out all peer-to-peer file sharing applications and limit the amount of bandwidth available to them from 5pm to midnight,” she wrote. “ISPs assumed that it was alright to target peer-to-peer file sharing, because it’s not sensitive to delay. But this assumption turned out to be wrong: there was an application called Vuze that used peer-to-peer file sharing protocols to stream video in real time. Real-time video is highly sensitive to delay, so the performance of Vuze suffered in the evening, when everybody wants to use the Internet.”

ISPs might also put encrypted traffic into a “slow lane” because they can’t identify what type of application it is, she said.

Startups with new technology might face the burden of having to prove to ISPs that their applications shouldn’t be relegated to a slow lane because of the “class” language, she told Ars. Users may also disagree with an ISP about what traffic should be prioritized. File uploads for online backup purposes may be OK with lower priority, but students uploading homework right before it’s due or lawyers filing legal briefs before deadlines would want their files uploaded as fast as possible, she said.