Net Neutrality in the Netherlands and human rights

Matthijs van Bergen

30 May 2013

Network Neutrality and Human Rights Multi-stakeholder dialogue organized by the

Council of Europe

Who am I

Internet citizen

Volunteer at Bits of Freedom

Legal advisor at ICTRecht

PhD candidate at Leiden University (eLaw Center)

Internet Citizen

Bits of Freedom Volunteer

(that’s not me)

Legal advisor at ICTRecht

Promotors Wouter Hins & Bart Schermer

PhD candidate

at the

University of Leiden

The foundation of the Internet is democratic

Power is decentralized when it can and centralized only when it must

The network serves the edges and not the other way around

The Internet even used to respect your privacy

© Peter Steiner, 1993

Greed is eroding the democratic foundation of the Internet

Internet access providers got jealous of Google and others’ profits and want to monetize control over content

This violates the separation between the application and transport layers

KPN got greedy

KPN’s evil plans

‘Monetize’ WhatsApp usage, by asking an extra fee to refrain from blocking WhatsApp

(i.e. Tony Soprano’s vision of networking)

Spy on its users using DPI

If Internet providers could

charge users extra to

refrain from blocking specific services, this would happen

This is not just about money

The ‘constitution’ of the Internet is at stake

The Dutch law (7.4a TA) in short (Not the literal text, but meaning is very close)

No hindering or slowing down applications and services on the Internet, unless NECESSARY to:

minimize the effects of congestion, giving equal treatment to equal types of traffic;

preserve integrity and security of network, service and terminal equipment;

restrict spam if user has given consent; or

give effect to a legislative provision or court order.

[this should have been here too: comply with an explicit request from the subscriber, provided that this request does not imply lower subscription fees]

How to apply the test

1. Is the provider slowing down or hindering traffic (incl. through pricing)?

2. Is such a measure prescribed by the contract or general terms?

3. Is there a legitimate aim for the measure?

4. Is the measure necessary in a democratic, end-to-end network; can’t the problem be solved at the edges?

5. Is the measure proportionate; isn’t there another measure possible that is less severe?

Margin of appreciation

Internet providers should have a margin of appreciation to decide which measures are necessary

More margin of appreciation when competition is strong and switching is easy

More margin of appreciation if there is less consensus among technicians about the effectivity of a measure

This means

Internet providers can’t blackmail providers of online content and applications to pay for not getting blocked

Internet providers can’t force users to pay extra if they want to keep using their favorite applications

If there is congestion, proportionate measures can be taken

But paying to get priority is not OK

IP-based services over private IP networks which are not Internet access services, are not within the scope of this law, and IP-TV and VoIP can have priority on the provider’s network.

But no slowing down or blocking Skype, Youtube or other Internet based VoIP or TV providers!!!!

If it is possible to let the user control what applications have priority and when, that is the best

7.4a sub 3 Providers of Internet access services do not make the prices for Internet access subject to the online applications or services used or offered through the Internet access service.

Therefore: subscriptions with low data caps for public Internet access and unlimited data for managed services, should be regarded with very strong

suspicion.

A model law on net neutrality

Internet providers shall refrain from any interference with or restriction to Internet users' freedom to access and distribute content through applications and devices of their choice, unless such interference is strictly necessary and proportionate to: a) minimize the effects of congestion, giving equal

treatment to equal types of traffic; b) preserve integrity and security of network, service and

terminal equipment; c) restrict spam if user has given consent; d) give effect to a legislative provision or court order; or e) comply with an explicit request from the subscriber,

provided that this request does not imply lower subscription fees.

Food for thought

• NN laws are restrictions on the right to property, which is also a human right. Where opposing fundamental rights are concerned, member states have a wider margin of appreciation to strike their own balance; are positive obligations to protect NN possible in this context?

• Transport layer vs content layer: please do not tie search neutrality and ‘Facebook neutrality’ in with net neutrality. State interference in Google’s editorial discretion over search and online content is a different issue (Solum and Chung call this a “layer violation”)

CC attributions

Digital globe – Rgbstock license

Power ranger – State Farm (flickr user)

Arab spring picture – FreedomHouse (flickr user)

Network – sjcockell (flickr user)

Catastrophic failure – cowbite (flickr user)

Internet subscription package – i.imgur.com (reddit user)

Information super tollway – Kalil Bendib

Constitution – jmorgan (flickr user)