[A2k] Net neutrality: one year after, a dark picture
La Quadrature du Net
contact at laquadrature.net
Thu Jun 1 05:01:15 PDT 2017
TAGS : NET NEUTRALITY, ARCEP, BEREC
La Quadrature du Net -- For immediate release
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
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
_"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's1  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."2  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
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 3 . 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
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.
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
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 regulation4  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.
* 1.  Body of European Regulators for Electronic Communications 
* 2.  from press release  by ARCEP the 30th of September 2016 on
"Transistion to IPV6".
* 3.  See especially the article 3  of the regulation
* 4.  Recital 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."
ABOUT LA QUADRATURE DU NET
La Quadrature du Net is an advocacy group that defends the rights and
freedoms of citizens on the Internet. More specifically, it advocates for
the adaptation of French and European legislations to respect the founding
principles of the Internet, most notably the free circulation of knowledge.
>In addition to its advocacy work, the group also aims to foster a better
understanding of legislative processes among citizens. Through specific and
pertinent information and tools, La Quadrature du Net hopes to encourage
citizens' participation in the public debate on rights and freedoms in the
La Quadrature du Net is supported by French, European and international
NGOs including the Electronic Frontier Foundation, the Open Society
Institute and Privacy International.
List of supporting organisations:
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