Net neutrality: one year after, a dark picture

Paris, 1 June 2017 — On the first anniversary of the adoption of the EU regulation on the Open Internet which governs the aspects of Net neutrality, and as the ARCEP (French Telco regulator) publishes its first report on the state of the Internet, we paint a dark picture of its implementation in France and within the EU.

While the ARCEP report reveals some positive points, it also draws too elegiac an assessment, leaving in the dark everything that is not progressing. La Quadrature thus wishes to draw its own —darker— assessment of the state of Net neutrality, and more broadly, of the role of technical intermediaries in exercizing fundamental freedoms in the digital environment.

On all these points the regulator has been alerted by us and by others. On all these points, it is informing itself. But it is not taking action. And while there is incontestable basis for action, ARCEP sometimes prefers to wait for users to make it force operators to comply with the European rules. The regulator is too cautious to step forward, to say what it has concluded, preferring to hide behind individuals or consumer associations.

A year ago ARCEP’s president invited us to judge them on their results. A year later, the regulator hasn’t acted. He told us yesterday that, now that the preliminary dialogue phase is over, ARCEP would now begin to act. He’s been inviting us implicitly to wait for us to judge their actions… That’s twice. And that’s too much.

La Quadrature du Net has no imperative position, nor really any opinion on how the regulator should operate. But all we can see is that no results are coming.

“What we want are not studies, sanctions, reports, dialog, legislation or voodoo. What we would like is for the operators to end their abusive behaviours toward their subscribers. ARCEP is the authority in charge of that matter, and it is making no progress with it.” said Benjamin Bayart, co-founder of La Quadrature du Net.

While, generally speaking, ARCEP is doing things right, this policy of stalling in some areas is a blot its activity. Sébastien Soriano talked about grey areas of the regulation. Here’s a grey area of his action:

IPv6: no rush, but even so…

BEREC’s¹Body of European Regulators for Electronic Communications guidelines (§16) presuppose the provision of a fixed IP address (either IPv4 or IPv6), and we shared our misgivings regarding the implementation as early as last September. Today IPv6 deployment is slow, and the lack of fixed IP addresses, or even public IP addresses for mobile phones, prevents users from providing self-hosted contents or applications, whereas that right appears explicitly in Net neutrality’s definition in Europe. Furthermore, the growth in the number of devices can only make the problem worse, restricting “some applications or usages, limiting the Internet’s open aspect and the users’ freedom.”²from press release by ARCEP the 30th of September 2016 on “Transistion to IPV6”. ARCEP has nevertheless taken on this job by opening an observatory of the transition to IPv6 in France. That transition is still quite slow, and a simple observatory is without doubt not enough.

VOD and managed services: they are all equal, but some are more equal than others

Regarding VOD or VOIP, some operators take advantage of their situation to push their own offering, or that of a partner, favouring the traffic of that service. This kind of practice is utterly contrary to the regulation on open Internet access ³See especially the article 3 of the regulation. Thus, all the market’s offerings of VOD (or VOIP), regardless of provider, should go through this prioritized access, otherwise preventing the creation of new services that don’t benefit from the same advantages: barriers to market entry, but also limited user choice depending the choice of operator.

Prioritizing traffic is not a problem in itself. It is the fact that this prioritisation is for only a single VOD (VOIP) service that is a problem, and that the service which benefits is chosen by the operator and not by the end user.

Until now the regulator hasn’t gone past the “proactive dialogue” stage with the operators, but as long as this kind of practice continues, it seems necessary to move on to the next phase, without waiting for consumers’ complaints.

Mobile DNS, intrusive proxies and captive portals

Among mobile phone operators, lying DNS, intrusive proxies (which modify content and track users) and captive portals are common, and the ‘proactive dialog’ from ARCEP is late in becoming a strong intervention from the regulator to end those unacceptable practices. Nonetheless those practices prevent users from circumventing the operators’ private censorship, and on the contrary, permits the operators to act on content (redirection to advertising, filtering, compression etc.) without transparency nor ways for users to protect themselves.

5G blackmail

The operators’ dominant theme, including in the framework of negotiating the telecom package, is that the only way to correctly handle the 5G network, to cover the investment costs and to encourage innovation is to roll back the European regulation guaranteeing Net neutrality.

None of those arguments is really valid, and Net neutrality, in contrast, is a true fulcrum for innovation and the development of competition and new uses, enabling all the users and actors identical access to the network to offer and use the services. ARCEP appears unreceptive to those arguments from the operators, and that’s good news. However, we would expect the French regulator, as well as the European Commission, to denounce that blackmail from the main operators clearly.

Which freedom to choose an end device?

The European regulation states that the end user can use any end device of his choice, a rule necessary to ensure an open Internet. ARCEP has work under way on this point, though there is no visible progress, not for lack of talking about it.

As of today, the end user is still subject to tied sales from fixed operators (the box) and cannot decide to opt for a terminal of his choice, even though this is fundamental to be able to choose free and open-source software, or have control over the connection to the network, making him independent from operators who do not always respect full neutrality in access to the network.

ARCEP analyses rather well the issues with mobile end devices: the ubiquity of closed offers within constrained environments (iOS and Android), the closing of alternative application stores, the de facto duopoly, the restrictive position of technical third parties in accessing the network, etc. A report on this issue has been published at the same time as the one on the status of the Internet. But this topic is easier for the regulator to analyse because it’s not within their competency: it’s easy to analyse when you don’t have to act.

Zero rating is regaining momentum

The situation has worsened in some member states. The “zero-rating” approved by the Belgian regulator and by justice in the Netherlands is contradictory to the intentions in preparing the regulation. The operators choose what their subscribers are supposed to be able to watch without restrictions, grabbing abnormal power over how citizens access information. In Germany too, an offer from “Deutsch Telekom” has been infringing Net neutrality since April, with no reaction from the regulator.

Lack of clarity in the BEREC’s guidelines cannot guarantee uniform application of the regulation throughout the EU, and BEREC’s coordination mechanism — currently presided over by Sébastien Soriano — seems insufficient. Will it be necessary to take action at the EU Court of Justice (ECJ)?

It is a real concern, because European regulators identified zero-rating as risky and undesirable, but it is still spreading. That disastrous effect forces us to reflect. In protecting the public interest and limiting abuse by the powerful, is telecom regulation a useless tool?

Worrying commercial offers

The rise of big corporations which own the network, entertainment production and the media, and the creation of product offerings which bundle those diverse services, raises the question of freedom of expression, of freedom of access to the information, and also of the diversity of media.

Thus consideration 7 of the regulation⁴Recital 7 : “In order to exercise their right to access and distribute information and content, and to use and provide applications and services of their choice, end-users should be free to agree with providers of Internet access services on tariffs for specific data volumes and speeds of the Internet access service. Such agreements, as well as any commercial practices of providers of Internet access services, should not limit the exercise of those rights and thus circumvent provisions of this Regulation safeguarding open Internet access. National regulatory and other competent authorities should be empowered to intervene against agreements or commercial practices which, by reason of their scale, lead to situations where end-users’ choice is materially reduced in practice. To this end, the assessment of agreements and commercial practices should, inter alia, take into account the respective market positions of those providers of internet access services, and of the providers of content, applications and services, that are involved. National regulatory and other competent authorities should be required, as part of their monitoring and enforcement function, to intervene when agreements or commercial practices would result in the undermining of the essence of the end-users’ rights.” takes into account the harmful effects on rights and freedom of the products offered by the service providers who dominate the market. What is there to say then about the now-common TV packages, as well as the ‘SFR Presse’ offer or the press package from Bouygues?

On these topics, again, ARCEP contents itself with waiting for complaints to be filed. Once again, regrettable.