France moves towards 'web neutrality' law

The notion of web neutrality is one whereby all access to the internet, and the very process of activity on the internet, is treated equally. It has become the subject of passionate international debate while service providers increasingly control, prioritize and even block certain forms of access and services, and government agencies are empowered to interfere in access to, and the functioning of, websites. Vincent Truffy reports on how France is moving towards legislation to define and ensure a neutral, non-prioritised web for all.

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"It's such an empowering thing to be connected at highspeed and without borders that it's become a human right", commented Sir Tim Berners-Lee, inventor of the worldwide web, in an interview this week with the BBC. He is one of a growing movement pushingthe notion of web neutrality, whereby all access to the internet, and the process of activity on the internet, is treated equally.

That is not currently the case, while Internet Service Providers (ISPs) prioritize, and in some cases even block, certain forms of access and services, and while government agencies are empowered to interfere in access and the functioning ofwebsites. EU digital agenda commissioner Neelie Kroes this week delivered a report on the subject, largely settling for the establishment of a voluntary code of neutrality by the internet industry itself.

But while Berners-Lee agreed that this was preferable, he raised the option that legislation should be established to ensure it, a topic that is the subject of passionate debate in the US.

Legislation is precisely what France has been studying for the past year, and aparliamentary report released also this month argues how and why a law must be established to ensure a neutral, non-prioritised web for all. Vincent Truffy reports.


The neutrality of networks is a relatively new idea. Since 2003 it's been popularised by a professor at Columbia University in New York, Tim Wu. His mantra: "Network neutrality is best defined as a network design principle. The idea is that a maximally useful public information network aspires to treat all content, sites, and platforms equally." But the principle itself is the very essence of the internet; a cable doesn't care what it carries, where it comes from or where the content is going.

The French postal and telecommunications code thus guarantees that "the operators of electronic communications respect the confidentiality of correspondence and the principle of neutrality towards the content of the messages transmitted, as well as protecting personal data". Yet in the last few years this right has been eroded away to the extent that it has been necessary to remind people more formally of the principle.

Debates, round tables and conferences took place on the subject in France in 2010. There was even a proposal by the opposition Socialist Party for a new law, which was roundly rejected. OnWednesday April 13th a report by a National Assembly (French parliament) fact-finding mission on the neutrality of the internet completed the series of discussions.

In the draft legislation put forward in December, the socialist Member of Parliament Christian Paul noted that "the search for a more attractive economic model or for short-term profit has led certain [internet operators] to undermine the open and equal nature of the internet - to undermine its neutrality, especially by favouring such and such a type of communication or certain types of content".

The rapporteur of the fact-finding mission, an MP from the ruling conservative right UMP party, Laure de la Raudière, underlined that a number of factors were today leading to strong pressure to bring in content discrimination on the networks. She cited "the growth in traffic", notably from video and mobile services, "the growing pressure of the public authorities ... and the culture industry [which] is pushing for the development of blocking [sites] to stop access to 'illicit' content" and, in France, "the uniformity of triple play internet access1 offers, available at the lowest prices in Europe and allowing unlimited access to the internet, that's to say irrespective of the level of traffic".2

In 2008, Google evenplanned to install servers directly at the internet service providers toimprove access to its pages, and on August 9th of that year the search engine company, in partnership with the telecommunications operator Verizon, putforward its own vision of the neutrality of networks, after discussions with the relevant American authority, the Federal Communications Commission (FCC) broke down. In formal terms, it involves a "plan for a legislative framework" which envisages "priority tariffs" for certain content or services. In other words, everyone has access to everything, but those who pay the most get priority.

This is not so far away from what, in France, the operator Free - supposedly a champion of digital freedom - is proposing; last summer it created priority access to TV on demand, billed at 3.99 euros per month.


1: Triple play is the term for the provision of broadband internet access, TV and telephone services in one package.

2: Mobile and landline phones.

A return to an economy of scarcity

If all those who talk about the issue invariably mention the great principles of the free circulation of ideas, pluralism and the capacity for innovation, their thoughts also turn to more concrete matters such as network congestion, the exponential costs of the infrastructure and the source of new revenues able to make their expenditure viable.

For example, a study published by Frost & Sullivan shows that unmanaged traffic (in other words where no distinction is made as to the content of services) - as it is currently carried out as a matter of principle on the internet - discourages telecommunications operators from investing in the equipment to extend high-speed internet everywhere. This is because they are not sure of being able to quickly recover their costs or be able to pass on their costs to their customers.

Even between operators the cosy understanding that has allowed them to exchange traffic without any financial transaction taking place - each one considering that the cost of the traffic sent by one operator is compensated for by what it sends to them - is breaking down. Internet telephony, video streaming, file-sharing and other uses that eat up bandwidth have arrived, disparities have appeared and the proper working of the networks demands new investment.

Mobile internet complicates matters even further; all the internet users in a given area share the limited frequencies of the local radio loop. Where there is a large number of users, for example in a town, connection speeds dwindle away to nothing.

So in contradiction to the prodigious profusion of pages, videos, images and sounds that can be copied without cost to infinity, and with the bottomless pit of content that is available everywhere and always, we now find emerging the tensions of a classic economy of scarcity, which is being used to justify a demand for barriers, different levels of development, exclusive deals and preferential offers.

At a conference on network neutrality held by telecommunications and postal regulator Arcep there was the same sense of gloom. According to Matthew Kirk of Vodafone "1% of users consume the majority of traffic and harm the experience of other users [...] In 2008, video on demand and peer-to-peer [file sharing] represented 72% of the traffic but [just] 8% of ISPs' income".

Emmanuel Forest of Bouygues Télécom envisages internet deals that are more expensive but with higher speeds for those who opt for video services, and cheaper deals for those who are happy just with emails. "The operators must be allowed to segment the market," he said.

In her outline remarks in the public debate, the then-secretary of state for the digital economy Nathalie Kosciusko-Morizet raised the dangers that could arise from exclusive deals between internet access providers and content providers. "In guarding exclusivity for certain content1 a network operator will be in a position to exercise a powerful and lasting lever to favour its part of the internet access market," she warned. "Comprehensive vertical integration structures could in addition go so far to include access to the networks, exclusive services and dedicated devices."

The operators are therefore very strongly tempted to restrict or even ban certain uses and content. It is, for example, impossible to transfer FTP files by a mobile phone. In the United States internet, cable and telephone provider Comcast was cleared by a Federal appeal court for having shut down internet access to users of BitTorrent, a company that uses software to help transfer large files across the internet. The problem is that, to filter, you need to know the content, or at least its general nature, which is in conflict with the obligation to preserve the confidentiality of transmitted data.


1: For example, the retransmission rights for sporting fixtures.

Website shut-downs would be ruled by a judge

Faced with this tension between an approach traditionally favourable to public freedoms and the economic cost of the application of the principle of network neutrality on the new sectors of the network, internet professionals are in general guarded about the idea of a new law on the neutrality of networks.

The consultation process overseen in France in 2010 by the secretary of state for development and the digital economy ended in the recommendation of a simple "code of good conduct" which is intended to "establish confidence between the actors as to the mechanisms for managing traffic on the networks", that is, a de facto discrimination of content according to the capabilities of the network.

And at the same time, again according to the summary note on this consultation process, "the intervention of the technical bodies concerned [should] be a response to legitimate objectives, should be as limited as possible and be applied in a transparent and non-discriminatory way".

"The demands [for filtering content] have increased over time," says the report. "The need to respect the laws of the internet [... ] can result in the putting in place of filtering or blocking of certain content." The word "certain" covers, in this case, those areas that appear "critical for the community". These are identified as "child protection, privacy, the fight against racism, consumer protection, copyright, trademarks, press infringements etc."

The report by Laure de la Raudière aims to "send a clear political message [...] to the economic actors concerned to encourage them to organise themselves ahead of any regulation to protect the internet, to the regulatory authorities to encourage them to watch over the development of practices on the internet, and to citizens to assure them that public action is continuing to protect their rights."

In the text that it proposes, this would involve guaranteeing "the ability of internet users to send and receive the content of their choice, to use the services or to make use of the applications of their choice, to connect the devices and to use the programs of their choice, as long as they do not harm the network, with a quality of service that is transparent, adequate and non-discriminatory, and this subject to obligations arising from the outcome of a legal action and measures needed for security reasons and situations of unforeseeable [internet traffic] congestion."

Which means that if the text is adopted by the legislature, and in order that there is consistency, the principle of protecting the neutrality of the networks should guide the actions of the public authorities; the systematic intervention of a judge would be a guarantee against any excesses when it comes to the blocking or shutting down of sites, and the evaluation of the effectiveness of these blocks. There would also be an assessment and guarantee of the quality of the traffic and the putting in place of a mechanism by which the services that create the traffic would pay the internet access providers a sum of money covering the costs involved.

In proposing to "guarantee the covering of investments in the network that allow the maintenance of an internet of quality" and readdressing the "variable costs of the network", the parliamentary fact-finding mission is seeking to overcome the objections of telecommunications operators concerning the cost of necessary investment in their networks.

In addition, the mission proposes to "avoid as far as possible the need for operators to block electronic communications because such a blockage has both direct negative effects (restriction on the freedom of expression and communication), and indirect ones (the inadvertent shut-down of sites, development of encryption etc.) [...] That's why it is proposed to question more before the justification for legal shut-down measures, despite their apparent legitimacy, because of their ineffectiveness and the perverse effects that they are liable to cause, and to make provision from now on for the systematic intervention of a judge to rule on necessary blocking measures, in order to better protect the freedom of expression".


English version: Michael Streeter

(Editing by Graham Tearse)

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