Net Neutrality 00-Marsden-Prelims.indd i 12/14/09 9:23:51 PM 00-Marsden-Prelims.indd ii 12/14/09 9:23:51 PM Net Neutrality Towards a Co-regulatory Solution CHRISTOPHER T. MARSDEN BLOOMSBURY ACADEMIC 00-Marsden-Prelims.indd iii 12/14/09 9:23:51 PM First published in 2010 by: Bloomsbury Academic An imprint of Bloomsbury Publishing Plc 36 Soho Square, London W1D 3QY, UK and 175 Fifth Avenue, New York, NY 10010, USA Copyright © Christopher T. Marsden 2010 CC 2010 Christopher T. Marsden This work is available under the Creative Commons Attribution Non-Commercial Licence CIP records for this book are available from the British Library and the Library of Congress ISBN 978-1-84966-006-8 e-ISBN 978-1-84966-037-2 This book is produced using paper that is made from wood grown in managed, sustainable forests. It is natural, renewable and recyclable. The logging and manufacturing processes conform to the environmental regulations of the country of origin. Printed and bound in Great Britain by the MPG Books Group, Bodmin, Cornwall www.bloomsburyacademic.com 00-Marsden-Prelims.indd iv 12/14/09 9:23:51 PM V Contents List of Abbreviations vii Preface xiii Introduction Net Neutrality as a Debate about More than Economics 1 1 Net Neutrality: Content Discrimination 29 2 Quality of Service: A Policy Primer 57 3 Positive Discrimination and the ZettaFlood 83 4 User Rights and ISP Filtering: Notice and Take Down and Liability Exceptions 105 5 European Law and User Rights 133 6 Institutional Innovation: Co-regulatory Solutions 159 7 The Mobile Internet and Net Neutrality 181 8 Conclusion: Towards a Co-regulatory Solution? 211 Notes 237 Bibliography 265 Index 295 00-Marsden-Prelims.indd v 12/14/09 9:23:51 PM 00-Marsden-Prelims.indd vi 12/14/09 9:23:51 PM VII List of Abbreviations 3G Third-generation mobile networks, providing voice and data capacity at midband speed above 128 kilobits per second 3G LTE Third-generation mobile networks Long-Term Evolution 3GPP 3rd Generation Partnership Project, a collaboration between telecommunications associations to make a globally applicable 3G mobile phone system specifi cation within the scope of the International Telecommunication Union (ITU) ADSL Asymmetric Digital Subscriber Line, technology for sending data over copper telephone wires, using asymmetrical speeds: higher download and slow uploading speed ADSL2+ Asymmetric Digital Subscriber Line 2+, a later higher speed variant of ADSL AT&T American Telephone and Telegraph, formerly a US monopoly telephone company subject to universal service, broken up into Regional Bell Operating Companies in 1982–4, leaving AT&T as long distance provider, since absorbed into an agglomerated regional incumbent provider. In this book, AT&T generally refers to its monopolistic pre-1982 existence AVMS Audio Visual Media Services, New Directive passed in 2007 to regulate audio visual media in Europe (see below TVWF) AWTs Alternative wireless technologies to mobile GSM and UMTS: these include WiFi, wireless local area network (WLAN), RFID and Bluetooth, with longer range WIMAX IEEE 802.16x and other proprietary technologies BBC British Broadcasting Corporation, a publicly owned and publicly fi nanced broadcaster, see PSB BEREC Body of European Regulators of Electronic Communications, see BERT BERT Body of European Regulators in Telecom, proposed regulatory body to help implement 2009 European telecoms laws. Other proposals for a similar body include BEREC, EECMA, and GERT BPON Broadband Passive Optical Network, networks utilizing a lower bandwidth Time Division Multiple Access than Ethernet fi bre, and also splitting a single optical fi bre between many (typically 32) households BT British Telecom, UK incumbent with competitive international operations separately managed under BT Global Services, and former owner of O2 mobile networks internationally (now owned by Spanish incumbent Telefonica) CDMA Code Division Multiple Access CoE Council of Europe, socio-cultural organization established in 1948, which in part seeks to uphold human rights in the ‘wider Europe’ of both EU Member States and non-members to the east and north, 00-Marsden-Prelims.indd vii 12/14/09 9:23:51 PM VIII LIST OF ABBREVIATIONS with currently 47 members. See also ECHR. It is also responsible for the Cybercrime Convention of 2001, ETS No.185 CRTC Canadian Radio-Television and Telecommunications Commission, the converged federal regulator of broadcasting and telecoms for federal Canada DivX MPEG-4 based digital video compression format DMCA Digital Millennium Copyright Act 1998 in the United States, a statute which obliges ISPs to take down material whenever they are notifi ed of copyright infringement, under the Notice and Take Down (NTD) procedure DNS Domain Name System, global address system for Internet hosts DPI Deep Packet Inspection, means by which ISPs can read into the packets of data they carry to analyse the contents as well as the header, in order to prioritize, deprioritize or even block the packets DRM Digital Rights Management, method of embedding content standards and policy into computer-readable form, used to enforce copyright conditions DSL Digital Subscriber Line DSLAM Digital Subscriber Line Access Multiplier, the box typically located in the local exchange which provides for typically about 32 households’ Internet access from the backbone network DSM Dynamic Spectrum Management, technology that can effectively replace DSL to provide faster data transfer using the same copper wiring DT Deutsche Telekom, German incumbent operator, also owner of T-Mobile networks internationally DWDM Dense Wavelength Division Multiplexing, an ultra-high-speed broadband technology E2E ‘End-to-end’ policy choice, based on an engineering principle that the early Internet worked best when all packets were routed with the same priority EC European Commission, executive body of the European Union responsible for developing and implementing the acquis communitaire, the body of EU law ECD E-Commerce Directive, 2000/31/EC, which limits ISP liability for packets it hosts or carries over its networks without knowledge of the content ECHR European Convention on Human Rights, more formally the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in 1950 by Member States of the Council of Europe EECMA European Electronic Communications Market Authority, see BERT ERG European Regulators Group, advisory body set up by 2002 regulatory framework for European telecoms, the grouping of the Member State NRAs ETNO European Telecommunications Network Operators, association of predominantly incumbent network owners 00-Marsden-Prelims.indd viii 12/14/09 9:23:52 PM LIST OF ABBREVIATIONS IX EU European Union, as established in the Treaty of Maastricht 1992. Formerly the European Economic Community (EEC) EDRi European Digital Rights Initiative, a non-profi t lobbying group on behalf of national privacy and Internet rights groups across Europe EB Exabyte: 1,000 petabytes (1 million terabytes or 1 billion gigabytes) FCC Federal Communications Commission, the converged broadcast and telecoms regulator for the United States at federal level FRAND Fair reasonable and non-discriminatory terms, where a monopoly provider of facilities (whether patents and other intellectual property, or physical goods) provides access to its competitors FT France Telecom, domestic incumbent in France, also owner of Orange mobile networks and formerly branded as Wanadoo ISP internationally FTTx Fibre-to-the-home: high speed Ethernet-ready transmission wire offered as FTTH (Home), FTTP (Premises) and FTTC (Cabinet – street furniture for telecoms normally available to each neighbourhood, therefore more local than the exchange) varieties DOCSIS 3.0 Data Over Cable Service Interface Specifi cation, the third generation of these cable broadband data standards GB Gigabyte (1,024 megabytes) Gbps Gigabit per second (1/8th of a gigabyte per second, or 128 MBps) GERT Group of European Regulators in Telecoms, see BERT GPON Gigabit Passive Optical Network, an evolution of BPON GSM Global System for Mobile Communication also known as 2G, second- generation mobile telephony HADOPI Haute Autorité pour la Diffusion des Oeuvres et la Protection des Droits sur Internet (translation: ‘High Authority of Diffusion of the Art Works and Protection of the (Copy)Rights on Internet’), an agency established under the 2009 French Law against copyright infringement, more formerly the ‘loi favorisant la diffusion et la protection de la création sur Internet’ HDTV High Defi nition Television HSDPA High Speed Downlink Packet Analysis, a 3G mobile phone standard HSUPA High Speed Uplink Packet Analysis, a 3G mobile phone standard ICT Information Communication Technology IETF Internet Engineering Task Force, a self-regulating technical standards body IGF Internet Governance Forum, United Nations multistakeholder discussion forum initially held in Athens 2006, and to be held annually for at least four years thereafter IMS IP Multimedia Subsystem, a set of standards for NGNs IP Internet Protocol IPR Intellectual Property Rights IPTV Internet Protocol Television, video programming delivered over IP networks rather than broadcast (cable, terrestrial and satellite) networks 00-Marsden-Prelims.indd ix 12/14/09 9:23:52 PM X LIST OF ABBREVIATIONS ISOC Internet Society, coordinating mechanism for Internet standards and policy ISP Internet Service Provider; company providing access to the Internet for consumers and businesses. The largest ISP in most Member States is provided by