The European Parliament on Tuesday voted to adopt net neutrality rules that allow data discrimination. As European Parliament press office puts it, "The new law will oblige firms offering Internet access to treat all traffic equally," even as network operators "will nonetheless be able to offer specialized services...on condition that this does not have an impact on general Internet quality."
Diverging from the more comprehensive net neutrality rules adopted by the US Federal Communications Commission in February, Europe's rules will allow service providers to offer Internet fast lanes for a fee.
[ See what wireless carriers think about FCC's rules. Read FCC Net Neutrality Push Rattles AT&T, Verizon. ]
The European Parliament insists it is not promoting Internet fast lanes or unequal treatment of data traffic. It makes this assertion by defining "specialized services" as something distinct from the open Internet, a line of argument that echoes the now discredited "separate but equal" legal doctrine used to justify racial discrimination in the US.
All Internet traffic will be treated equally, except when it isn't.
Anne Jellema, CEO of the Web Foundation, the nonprofit created by World Wide Web creator Tim Berners-Lee, criticized the European Parliament vote in a blog post. "Now, European start-ups may have to compete on an uneven playing field against industry titans, while small civil society groups risk having their voices overwhelmed by well-funded giants," she said.
Beyond "specialized services," the EU rules allow Internet service providers to exempt certain applications from monthly bandwidth caps, a practice known as "zero rating" or "sponsored data." ISPs can thus influence which bandwidth-dependent companies win or lose in certain markets by exempting partners from data costs while charging non-allied firms.
According to Berners-Lee, the rules also allow ISPs to define classes of service, such as encrypted traffic, and to set the speed available to such classes. They also allow ISPs to modify traffic speeds to prevent "impending" congestion, a term so ill-defined that it amounts to discretionary data throttling.
The new net neutrality rules are part of the Telecoms Single Market package, which ends mobile network roaming charges, at least in part, by June 2017. Members of parliament had the chance to adopt amendments that would have closed the net neutrality loopholes but they failed to do so.
Marietje Schaake, a Member of the European Parliament from the Netherlands, with the Alliance of Liberals and Democrats for Europe Party, called the vote "a missed opportunity" to implement stronger net neutrality laws.
Jellema says that EU regulators, national regulators, and the courts will now face the challenge of heeding the citizens' concerns about Internet fairness as they try to interpret the vague rules.
Though the FCC adopted strong net neutrality rules for the US in February, the fight isn't over. USTelecom in April filed a complaint in the U.S. Court of Appeals for the District of Columbia that challenges the FCC's reclassification of broadband Internet access as a public utility. Arguments are scheduled to be heard in December.