September 08, 2010 | Jim Killock

Net neutrality: UK taking first shots at the open Internet

Thursday is the deadline for Ofcom’s “informal consultation” on net neutrality. This is taking place because the government will shortly be looking at putting new laws in place allowing ISPs to use network discrimination technologies to create “new business models”.

These laws come from last year’s ‘telecom’s package’. On the one side, big telecoms firms lobbied for new rules allowing all kinds of network discrimination.

They argued that special cases such as people wanting high speed gaming, ultra-reliable emergency services, or perhaps high definition television, meant that wide rules had to be created allowing wide-raging network discrimination.

They were opposed by groups like La Quadrature du Net, ORG and BEUC, alongside Internet companies like Yahoo, Skype and Google. After all, both Google and Skype already understand what can result from closed networks: Skype believe they have suffered from network discrimination on fixed ISPs, and have applications blocked on closed mobile networks.

Now Ofcom are seeking views on their preferred solution to potential problems that such network discrimination may create. Their preferred solution is “transparency”, even though, as they say in their conclusion, it is unclear if it would work:

5.47 Ofcom strongly believes that consumer transparency is critical in any scenario where traffic management occurs and that this should be the main focus of intervention in the short term …

5.49 However, we also recognise that it is unclear how far improved consumer transparency would alleviate all concerns about traffic management. Therefore, it would be important to review the efficacy of any approach.

Meanwhile, the FCC in the USA is seeking to establish rules that have a much more developed sense protecting openness, competition, innovation on the Internet, with six proposed principles:

Consumers are entitled to access the lawful Internet content of their choice

Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement

Consumers are entitled to connect their choice of legal devices that do not harm the network

Consumers are entitled to competition among network providers, application and service providers, and content providers.

A provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.

A provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking.

The problem with relying on transparency is pretty obvious. Not only is it difficult to communicate what traffic management means, but traffic policies would at best be one problem to consider among many others; but fundamentally the level playing field as it is applied to everyone is what counts. Once some people are outside of the level playing field, many more are denied the benefits of communicating with them as effectively as they could have done before.

There is a debate to be had, of course, about what types of traffic management are appropriate. But the cautious, narrow approach Ofcom are taking avoids answering the difficult questions about the can of worms that undermining open internet principles opens up.