FinalAmendments

De La Quadrature du Net
Révision datée du 22 octobre 2015 à 16:48 par Adc (discussion | contributions) (Amendement 12)
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After several months of negotiations, between the Council of the European Union, the European Commission and the European Parliament, the European Parliament will vote on the compromise text in plenary session on 27 and 28 October!

Here is the list of amendments to be supported by MEPs to save Net Neutrality and fight against discrimination on the Internet.

The official list of amendments is published on the European Parliament website

Amendement 2

Council position Amendment
(3) The internet has developed over the past decades as an open platform for innovation with low access barriers for end-users, providers of content, applications and services and providers of internet access services. The existing regulatory framework aims to promote the ability of end-users to access and distribute information or run applications and services of their choice. However, a significant number of end-users are affected by traffic management practices which block or slow down specific applications or services. Those tendencies require common rules at the Union level to ensure the openness of the internet and to avoid fragmentation of the internal market resulting from measures adopted by individual Member States. (3) The internet has developed over the past decades as an open platform for innovation with low access barriers for end-users, providers of content, applications and services and providers of internet access services. The principle of ‘net neutrality’ in the open internet means that traffic should be treated equally, without discrimination, restriction or interference, independent of the sender, receiver, type, content, device, service or application. As stated in the European Parliament resolution of 17 November 2011 on the open internet and net neutrality in Europe, the internet's open character has been a key driver of competitiveness, economic growth, social development and innovation – which has led to spectacular levels of development in online applications, content and services – and thus of growth in the offer of, and demand for, content and services, and has made it a vitally important accelerator in the free circulation of knowledge, ideas and information, including in countries where access to independent media is limited. The existing regulatory framework aims to promote the ability of end-users to access and distribute information or run applications and services of their choice. However, a significant number of end-users are affected by traffic management practices which block or slow down specific applications or services. Those tendencies require common rules at the Union level to ensure the openness of the internet and to avoid fragmentation of the internal market resulting from measures adopted by individual Member States.

Amendement 11

Article 3 – paragraph 3 – subparagraph 2

Council position Amendment
The first subparagraph shall not prevent providers of internet access services from implementing reasonable traffic management measures. In order to be deemed to be reasonable, such measures shall be transparent, non-discriminatory and proportionate, and shall not be based on commercial considerations but on objectively different technical quality of service requirements of specific categories of traffic. Such measures shall not monitor the specific content and shall not be maintained for longer than necessary. (c) The first subparagraph shall not prevent providers of internet access services from implementing reasonable traffic management measures. In order to be deemed to be reasonable, such measures shall be transparent, non-discriminatory and proportionate, and shall not be based on commercial considerations. Such measures shall not monitor the specific content and shall not be maintained for longer than necessary.

Justification

It is inconsistent to state that traffic management “measures should not be maintained as long as necessary” and that they should be “without discrimination”, at the same time as establishing an overarching rule that, by default, different categories can always be treated differently. Moreover, allowing ISPs to discriminate among classes of applications under Article 3(3) subparagraph 2 contradicts Article 3(3) subparagraph 3, which clearly states that "discriminating among categories" of content, applications, or services are "traffic management measures going beyond those measures set out" in Article 3(3), subparagraph 2. That suggests that the drafters wanted to allow discrimination among classes of applications ONLY in the specific cases of exceptions specified in Article 3(3), subparagraph 3, (a)-(c).

The categorisation is only possible if the internet provider has the ability to categorise traffic. So, for example, the category into which encrypted data should be put cannot be ascertained. Encryption is crucial for online security and it has been estimated that, by next year, half of internet traffic will be encrypted (see http://fortune.com/2015/04/30/netflix-internet-traffic-encrypted/). If this exception is widely used, internet companies and users will have a choice – the slow lane or the unsafe lane. Furthermore, there will be a de facto discrimination in favour of large video sources (YouTube or Netflix, for instance), where the service provider's (encrypted) traffic will be assumed to be video given its origin while videos from smaller sites (blogs, political parties, etc.) will be downgraded.

Amendement 12

Article 3 – paragraph 3 – subparagraph 3 – point c

Council position Amendment
(c) prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally. (c) prevent or mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally.

Justification

It restores the European Parliament's first reading text. Cf. Article 23(5) (d) and accepts the compromise with Council to move to "exceptional or temporary". The provision on impending congestion in unnecessary and it will be difficult to interpret. ISPs are only allowed to engage in blocking or discrimination or applications or classes of applications to "mitigate" congestion if the congestion is "temprorary" or „exceptional.“ These terms have been defined carefully to ensure that these situations remain the exception, rather than the rule. The current version of the recital allows ISPs to use these intrusive measures to "prevent" any kind of congestion, not just temporary or exceptional congestion. This vastly increases the range of cases in which ISPs can engage in blocking/discrimination of applications or classes of applications to manage congestion:

(1) it allows ISPs to use these measures before congestion has even occurred (all under the guise of preventing impending congestion).

(2) it allows ISPs to use these measures to prevent any kind of congestion, allowing ISPs to do an endrun around the careful protections that were built into the definitions of "temporary" and "exceptional.

Amendement 13

Article 3 – paragraph 5

Council position Amendment
5. Providers of electronic communications to the public, including providers of internet access services, and providers of content, applications and services shall be free to offer services other than internet access services which are optimised for specific content, applications or services, or a combination thereof, where the optimisation is necessary in order to meet requirements of the content, applications or services for a specific level of quality. 5. Providers of electronic communications to the public, including providers of internet access services, and providers of content, applications and services shall be free to offer services that cannot be provided via internet access services which are optimised for specific content, applications or services, or a combination thereof, where the optimisation is necessary in order to meet requirements of the content, applications or services for a specific level of quality. Providers of internet access to users shall not discriminate between functionally equivalent services and applications.
Providers of electronic communications to the public, including providers of internet access services, may offer or facilitate such services only if the network capacity is sufficient to provide them in addition to any internet access services provided. Such services shall not be usable or offered as a replacement for internet access services, and shall not be to the detriment of the availability or general quality of internet access services for end-users. Providers of electronic communications to the public, including providers of internet access services, may offer or facilitate such services only if the network capacity is sufficient to provide them in addition to any internet access services provided. Such services shall not be usable or offered as a replacement for internet access services or content, applications, or services available over internet access services, and shall not be to the detriment of the availability or general quality of internet access services for end-users.

Justification

This amendment reflects the European Parliament's first reading reflected in Parliament's Recital 49, Article 2(15) and Article 23(2).

This amendment is very necessary to prohibit practices such as Netflix in the USA that signs contracts with ISP in order to get fast lines for its services, invoking the fact that the service is available as a specialised services (on TV for example).