Why Europe threw net neutrality slacktivists under a bus

Because 'good enough' is better than... years of fighting

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Special Report The EU threw the Net Neutrality slacktivists under the bus this week, not only because it wanted to "draw a line and move on" from the thorny issue, and because it didn't find their arguments convincing. Policy makers had heard empirical evidence – based on neutrality legislation – that "soft rules" work better than "hard" regulations, and that one of the activists' bêtes noires actually benefits startups.

In the US, the neutrality wars are set to occupy lawyers and activists for years. But by achieving a broad consensus, Europe has killed it as a political issue.

"There needs to be an intellectual consensus, and Europe has found one. What it has said this week is: ‘We’ve had enough. We’re moving on’,” says Roslyn Layton, a PhD fellow at Aalborg University, who has produced one of only two empirical studies on the consequences of net neutrality regulation worldwide.

When the European Parliament voted through a slimmed-down telecoms package this week, it rejected the strict prohibitions on network management and private business agreements activists insisted were essential to "saving the internet".

Not everyone is happy. By passing any kind of EU-wide regulation, Brussels has has grabbed power from national-level regulators. Some, like Ofcom, and regulators in Japan, South Korea and the Nordics, think "hard" neutrality is highly undesirable, and not rationally justified. Many reserve the right to intervene, but do not think pre-emptive regulations are wise. In other countries, such as Slovenia and Netherlands, regulators have already introduced "hard" rules.

What has gone under-reported is a sober analysis of the neutrality regulation introduced around the world. This suggests that far from helping consumers and startups, bad legislation could achieve the opposite effect. Wait. How could this be?

First, let’s run through the context of Europe’s decision.      

Pick a Cause. Any Cause. How about 'Internet Freedom'?

Net neutrality has long been a favourite slacktivist cause, as ex-Googler Ted Dziuba explained for us seven years ago, in  a prophetic piece called “Google disguises capitalism as civil rights”. By signing up to the cause of “internet freedom” or “an open internet”, one joined a world in which the baddies and goodies were clearly distinguishable. Who isn’t for an open internet? A closed internet sounds like an oxymoron. Few people either will quibble that “edge innovation” has been a positive dynamic, while the notion that access networks have the power (in theory anyway) to pick winners is easy to grasp.

As Dziuba explained, net neutrality was a perfect candidate; it showed you were not only caring, but modern, too. You cared about the internet, dammit.    

The problem was that for the "cause" to achieve a "victory", because they didn't trust promises, codes of conduct, or post facto regulatory powers. So, at some point new, legally enforceable regulations would have to be devised, and these regulations needed to tick several boxes. To be passed, there had to be an economic justification for the rule. The new rules would need to define “harm”, then quantify it as a threshold for regulatory intervention. And the “fix” for the “harmful behaviour”, whatever that might be, had to be practically feasible. In addition, the redress had to be proportionate. Much as you can significantly lower crime by introducing an authoritarian police state, you don’t want the disadvantages to outweigh the benefits. Layton compares the infant internet we have to today to early science: it's imperative "we allow scientific experiments to be made".

This is where the rubber hit the road.

Activists are good at telling the world that they are highly virtuous people - in fact, for many, that’s the motivation of participating in a particular cause, something that's acquired the name “virtue signalling”.

But they're less comfortable in dealing with the nitty-gritty, making a credible case in physics, economics and network management practice. Hence much of the discussion about neutrality is conducted by academics lawyers, and describes a theoretical world, rather than the reality of multiplexed stochastic systems.

Over a decade, the definition of "un-neutral network practice" has shifted, and moved in different directions. Originally the concern was class-based discrimination. In 2005, the FCC moved swiftly when an ISP blocked Vonage’s VoIP service (the “Madison River”), ordering the ISP to stop. That was done and dusted, with no new laws being required. That’s often held up as a benchmark for “soft” neutrality regulation, because the regulator acted so swiftly and decisively. But for the Neutrality slacktivists, that’s never been enough. A measure of their virtue became how “hard” they could be, and this succeeded in the regulatory capture of the FCC earlier this year, which was effectively a coup.

Perhaps realising that it was their last chance, the amendments that lobbyists wanted the European Parliament to enact this week were radical. They even included a call to outlaw a practice even many net neutrality supporters don't find problematic: “zero rating”.

Zero rating is when a service and an access provider strike a deal, so that the traffic doesn't count against the consumer's data ration. Facebook, Google, Spotify and Wikipedia have all struck zero rating deals. Many neutrality supporters don’t have a problem with it, because no money changes hands. But some activists view any preferential deals not as antitrust experts might, weighing the case evidence, but assume that any and all are anti-competitive. It follows a chain of speculation: Surely if we allow no-fee zero rating, then paid deals will follow? Then, wouldn't big bucks content providers strike deals to disadvantage their competitors? Public Knowledge, an activist group that Google helps fund, has argued that once zero rating became the norm, more caps would be introduced, as the ISPs would be incentivised to seek rent.      But in reality the opposite to what the activists fear has actually happened. You won’t read this on many tech blogs, which typically parrot the activists' talking points - but you’ll be intrigued why.       

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