Caution : This paper is provided to you by Isoc France. Its sole purpose is to address the issue at hand in the simplest and most didactic way. It is written from a French perspective. If you want or need specific information, please contact your legal counsel.

Summary

Your access provider do not care about what you do on the Internet, whether you’re browsing through a web site, calling someone or watching a video. That is what Net Neutrality is all about : your access provider does not differentiate data flowing through its pipes. It is a something that French regulations protect but other countries, especially the USA, do not and some access providers are now pushing to change how things worked up to now. They want to charge Google, YouTube and other service providers an extra fee to guarantee the quality of their communications.

Author(s) : Laurent Ferrali and Charles Simon, Isoc France’s legal issues working group

1. What is Net Neutrality ?

Network Neutrality is a global vision of the Internet in which access providers handle in the same way all streams of data (web traffic, peer to peer exchange, Voice over IP) flowing through their pipes. They do not discriminate internet users on the base of information that these users originate.

2. Is Net Neutrality specific to the internet ?

Yes it is. It has to do with the way the Internet developed. Whilst the telephone and the Minitel (a French predecessor to the Internet) were centralised, the internet is “decentralised” in nature, meaning that the power lies in the borders, in the hands of the users. Users can be service providers such as YouTube or Skype or individuals just like you and me.

Whilst the services offered through the telephone or the minitel were restricted to those authorised by the network operators, internet access providers solely transmit data generated by their users, without interfering.

3. Are there any provisions in France covering Net Neutrality ?

The French Postal and Electronic Communications Code which gathers the main regulations related to the Internet seems to establish a neutrality duty for access providers to follow. Unfortunately, cases law is scarce at best in this regard so that it is not possible to define the content of this duty more accurately. In the USA and in most of the countries worldwide there are no such regulations.

4. Why talk about it now ?

Because in the USA and elsewhere around the Globe, there is a campaign to challenge Net Neutrality. Some say that access providers accepted Net Neutrality before for practical and economical reasons. Now they say that things have changed : on the one hand, the networks of access providers are more and more overloaded, on the other hand, there are more and more services available on the internet and some of them require a lot of resources to work properly, video on demand for example.

5. But why precisely now ?

Internet experts agree that the internet is at a turning point of its history. Right now more than one billion people are connected to the internet and the number is rapidly increasing. With the convergence, the mobile Internet and the Internet of things emerging the growth rate is indeed particularly strong.

A lot of money will have to be channelled in the deployment of new infrastructures in order to support the growth of the network and the pipes owners do not agree to be the only ones paying for it.

6. What is the proposal of those who challenge Net Neutrality ?

They want service providers such as Skype, Google, YouTube… to contribute to the financing of new pipes. It means that access providers would charge them an extra fee and use it for the deployment of new infrastructures. The bargaining chip would be that access providers would then guarantee the quality of the communications to the paying service providers. Such a guarantee would be very important to service providers offering Voice over IP or Video on Demand as quality is key for them.

7. Why is it more of an issue in the USA ?

Because an overwhelming majority of the internet key players are US-based : eBay, Skype, MSpace, Facebook… They are all Americans. Furthermore there are only a handful of internet access providers in the USA, especially when compared to the current situation on the European market. Therefore on the one hand there are strong content and application providers in the USA pushing for a « status quo » and on the other hand equally strong access providers with no fear of confrontation because they know that it would the end users, you, and not them who would first suffer from a conflict with the service providers. What we have here is a recipe for an open fight.

8. Why should I care ?

8.1. If Net Neutrality was successfully challenged in the USA, it could snow-balled in France and in the rest of Europe. The USA are often regarded as a role model for anything telecommunications-related. Furthermore, for cost reasons, Internet communications still often transit through the USA ! Protecting Net Neutrality in France when discrimination would still occur because of roundabout ways through the USA would be an illusion.

8.2. Net Neutrality prevents your access provider to favour the quality of their own services over that of their competitors. For example the Quality of Service of their own Voice over IP and Video on Demand services would be guaranteed whilst that of third parties would be unpredictable, leading to a restriction of the choice that you have when selecting which service to use.

8.3. Discrimination could prevent new services from emerging. The ‘troublesome” services, those which require a lot of resource to work properly, are recent. YouTube, MySpace or Facebook were still only little known a few years back. They manage to flourish because the obstacles they had to cross were minimal. For instance they didn’t have to come to a special agreement with access providers to guarantee that the data they were sending were properly transmitted to the Internet users. Tomorrow new services might have to come to such an agreement if Net Neutrality was successfully challenged. In a way it would be like recreating the situation that prevailed with the telephone and the minitel in Fance !

9. What is the opinion of ISOC on Net Neutrality ?

It is really hard to sum up the arguments about this within the French Chapter of ISOC, the other European Chapters and the global organisation, ISOC World. In the ISOC France legal issues working group we believe that challenging the so-called « end-to-end » or decentralised principle could weaken the very basis on which the Internet is built. The growth rate of the Internet in recent years in France, in Europe and worldwide is largely due to a competition on two levels : an infrastructure-based and a service-based competition. Every Internet users, you and me, have had their say in it by choosing their access providers, by simply using certain services.

We agree that future infrastructures will have to be paid for but to kill the “golden Goose” of new services is not the solution for us.

Net Neutrality also helps protect Freedom of speech and diversity against some governments (in China, Burma), which want to control the Internet, sometimes with the help of Western companies.

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