On Tuesday, October 27, the European Parliament will vote in Strasbourg on rules that are supposed to protect net neutrality in the EU. The proposed text emerged from the so-called "trilogue" meeting between the European Commission, European Parliament, and the EU Council held in June to reach a "compromise" text taking into account the differing views held by the three institutions. However, there are serious problems with the compromise rules, and in the run-up to the vote next week, digital activists are urging the public to contact MEPs to ask them to support amendments that will fix the main issues.

"Save the Internet," a rather pointedly named website, has been put together by NGOs around Europe that are concerned about the impact the new net neutrality rules could have. As well as informing the public, it is designed to make it easy to contact MEPs, using e-mail, tweets, or even a free phone service. The site singles out four main aspects of the compromise text that need addressing: specialised services; zero-rating; class-based discrimination; and network congestion management.

The US academic Barbara van Schewick, Professor of Law and Director of Stanford Law School’s Center for Internet and Society, agrees with Save the Internet's analysis of the main problems. In an article posted on Medium this week she suggests ways in which they can be fixed by MEPs when it comes to the vote next week.

Mo' lanes, not faster lanes

As Ars reported earlier this year, by allowing "specialised services" on the Internet, the EU's net neutrality proposals would create a two-tier system with fast and slow lanes. Van Schewick explains that this would be a disaster for innovation in the EU: "If established companies can pay so that their content loads faster or does not count against users’ monthly bandwidth caps, then those who can’t pay don’t have a chance to compete."

Moreover, she points out that this would raise costs for everyone: "Large corporations that pay to be in the fast lane will have higher costs, so we the customers will be forced to pay higher prices for their products and services." The key here, she says, is to "refine the definition of specialized services to close the specialized services loophole and keep the Internet an open platform and level playing field."

Gonna take rating down to zero

The second problem identified by many digital activists is that the new net neutrality rules do not make it clear that EU Member States can regulate zero-rating. Zero-rating is the practice of not counting usage for certain services as part of the overall monthly bandwidth allowance. The most famous example is Facebook's Internet.org, which has generated controversy for the way it favours certain Internet services over others.

Zero-rating is problematic because it discriminates against some Internet services—the antithesis of net neutrality—and therefore distorts competition. Van Schewick cites research that suggests it can harm users directly: "When European ISPs start zero-rating certain applications or content, they often reduce overall bandwidth caps or increase the price of unrestricted bandwidth, as the European research firm Rewheel has shown."

Lowering the monthly allocation will tend to encourage customers to view zero-rated material preferentially, which is precisely what ISPs that adopt zero-rating want. "Thus, zero-rating harms users (and the providers of applications that are not zero-rated) by reducing the amount or increasing the costs of bandwidth that users can use however they like." The solution here, she says, is for the European Parliament to "adopt amendments that make it clear that member states are free to adopt additional rules to regulate zero-rating."

Class-based discrimination

The third issue concerns "class-based discrimination." That is, when an ISP chooses to slow down an entire class of traffic, giving preferential treatment to others, even if there is no congestion that needs to be addressed. Van Schewick sees numerous problems here. As well as the obvious ones of downgrading the experience of using the throttled class of applications, and allowing ISPs to distort competition by giving favourable treatment to some traffic but not others, there's another serious issue.

"If traffic is encrypted, then the ISP cannot identify what kind of application—e-mail, telephony, web browsing—that a user is using, so it doesn’t know what kind of treatment it needs," she says. "In the past, ISPs have addressed the problem by simply putting all encrypted traffic in the slow lane." At a time when encryption is emerging as one of the most important ways of protecting privacy and limiting surveillance, it is extremely troubling that users might be discouraged from adopting it because of throttling by ISPs. It could lead to the situation where VPNs become synonymous with poor performance, and privacy is seen as something that must be paid for with speed.

Van Schewick says that the European Parliament needs to ensure that the net neutrality rules prohibit ISPs from differentiating among classes of applications unless it’s strictly necessary to manage congestion or maintain the security or integrity of the network. She points out: "The proposal already contains an exception that allows ISPs to differentiate among classes of applications if that’s the only way to manage congestion. Thus, removing the language that allows class-based traffic management at all times protects users, competition, and innovation, while still giving ISPs the tools they need to manage their networks."

Impending doom

Finally, like the Save the Internet group, van Schewick is concerned about ISPs being allowed to manage congestion when it is "impending," rather when it's actually happening. "Since the meaning of 'impending' is not clearly defined, this provision opens the floodgates for managing traffic at all times. It makes it easier for ISPs to discriminate among classes of applications even if there is no congestion, using the justification that congestion was just about to materialize." This one is easy to fix: just limit what ISPs can do when congestion is "impending."

In terms of what happens, next, van Schewick writes: "If a majority of the members [of the European Parliament] who vote approves this flawed compromise next Tuesday, the rules are adopted and become law. Europe will have far weaker network neutrality rules than the US, and the European Internet would become less free and less open." However, if a majority of MEPs vote for amendments, it goes back to the EU Council. If the Council accepts the amendments, the new text becomes law. Otherwise, "a joint committee consisting of representatives of the Parliament and the Council has six weeks to come up with a compromise. Any compromise would then have to be adopted by the Parliament and the Council."

If the bad news is that next week's proposals are much worse than the text agreed by the European Parliament last year, which were ruined by the trilogue haggling, the good news is that digital activists are pretty much unanimous on what needs fixing, and how. Now all that is needed is for EU citizens to convince their MEPs to make that happen. At least the Save the Internet site makes that relatively easy. Alternatively, those in the UK can use the free WriteToThem service to find and contact their MEPs. A document containing the exact wording of the amendments recommended by the Save the Internet group is available online.