[bestbits] Net Neutrality - summary of FCC new rules

Seth Johnson seth.p.johnson at gmail.com
Fri Mar 6 20:06:44 EST 2015 

Keep in mind that Nick makes frequent reference to the notion of
"technology neutrality."  This is, at best, a sort of "last draft"
principle.  That is, it is something that you do *after* you develop
the policy, and your considerations should very much enter into the
technical ways of things.  Then once you understand the principle that
you wish to have at play, you may be able to preserve it while
generalizing it to be independent of technology.  But when you do so,
it should be staed in a way that preserves the principle, which is
often technical in effect.  Most often, especially when you hear it
from the US, it's just a principle used to say "don't change" -- and
in international discussions, that often comes across as a
conservative play to minimize the need to negotiate -- and who would
want to push the point, huh?

But in the meantime, the question is indeed whether the principle
manifested in technical way you want things to work, needs to change.
And that is a question about things like what the technology is (what
it is doing, stated as abstractly as you please) and what its
implications are; or about how general the technology is.  In any
case, the complicated implications actually buried in that term
"Technology neutrality" are very involved, and in fact the technical
nature of things, the way it's to function, is always *so very much*
the issue, and you have to get that down.  *Before* you just accept
"let's be technology neutral."  And *before* you proceed to a sort of
"final edit" step of describing the technical way of things generally
in order for it not to be about particular technologies.

Or one simple way to summarize it is, "technology neutrality" says
zero about what the nature of policy should be in terms of its
technical nature, what it's actually trying to set up to happen.

Also one thing people are not generally cognizant of, is how much
UN-related processes set terms in advance.  The implications for this
so-called "principle" of "technology neutrality" in that light are
very interesting in terms of how positions are projected regarding
these international processes.

The US projected a message to the world at large at WCIT, that they
were resisting "expansions of ITU's scope."  But note: 1) the US did
not actually advocate any changes at WCIT that would actually *affect*
the ITU's scope -- based on the terms already set up.  i.e., the US
said don't change the definition of telecommunications that the ITU
had in the ITRs -- because the definition was "technology neutral" --
but the definition was already stated as generally as the ITU needed
to apply it in all the areas the ITU wanted to and had already been
doing so.  2) This language of "resisting expansion" comes across to
the outside world as if something had been accomplished, when really
all it does is assure that things stayed the same.

Similar things happen in many of these arenas.

Without talking about the real issue here re telecommunications and
information services, I hope everyone appreciates how little the
notion of "technology neutrality" really says about actual policy --
beyond just saying "we like to state the principle generally" -- and
that comes *after* you determine the very technical issue of what the
principle is.

So don't take it too seriously.  You still have to do the policy
development, and "technology neutrality" doesn't instruct you on that.
I'm not even convinced it's anything to fuss over as a "final draft"
notion either, but I'll go along so long as the actual policy
development is alive.


Seth




On Fri, Mar 6, 2015 at 12:08 PM, Nick Ashton-Hart <nashton at consensus.pro> wrote:
> For those of you looking for good definitions for these terms:
>
> For what it is worth, both of the 2015 definitions Erik quotes aren't very
> good, in part because they're very un-technology-neutral (in many ways). The
> second is worse because it uses the phrase "communication to the public"
> which is a defined term in European and international copyright law which
> has no place being used here and it also mixes together both the ISP and
> services which use networks to provide Internet-based services to the
> public.
>
> In the first, better to use the definition for "public telecommunications
> transport service" from the WTO GATS Annex on Telecommunications: "“Public
> telecommunications transport service” means any telecommunications transport
> service required, explicitly or in effect, by a Member to be offered to the
> public generally. Such services may include, inter alia, telegraph,
> telephone, telex, and data transmission typically involving the real-time
> transmission of customer-supplied information between two or more points
> without any end-to-end change in the form or content of the customer's
> information."
>
> As you can see, it is very broad (thanks to "inter alia."
>
> The definition of  "Telecommunications" from the annex is also useful:
> "“Telecommunications” means the transmission and reception of signals by any
> electromagnetic means."
>
> For those of you who support network neutrality, you may be surprised to
> learn that the WTO has obligations for all WTO members that could easily be
> argued support NN. It is a complex area (as members make commitments as to
> how they'll apply these rules) but it is still really worthwhile to look at
> this language from the annex (if you're wondering what a "Member" is, that's
> the term used for WTO member-countries):
>
> (c) Each Member shall ensure that service suppliers of any other Member may
> use public telecommunications transport networks and services for the
> movement of information within and across borders, including for
> intra-corporate communications of such service suppliers, and for access to
> information contained in data bases or otherwise stored in machine-readable
> form in the territory of any Member. Any new or amended measures of a Member
> significantly affecting such use shall be notified and shall be subject to
> consultation, in accordance with relevant provisions of the Agreement.
>
> (d) Notwithstanding the preceding paragraph, a Member may take such measures
> as are necessary to ensure the security and confidentiality of messages,
> subject to the requirement that such measures are not applied in a manner
> which would constitute a means of arbitrary or unjustifiable discrimination
> or a disguised restriction on trade in services.
>
> (e) Each Member shall ensure that no condition is imposed on access to and
> use of public telecommunications transport networks and services other than
> as necessary:
>
> (i) to safeguard the public service responsibilities of suppliers of public
> telecommunications transport networks and services, in particular their
> ability to make their networks or services available to the public
> generally;
>
>
> (ii) to protect the technical integrity of public telecommunications
> transport networks or services; or
>
>
> (iii) to ensure that service suppliers of any other Member do not supply
> services unless permitted pursuant to commitments in the Member's Schedule.
>
>
> (f) Provided that they satisfy the criteria set out in paragraph (e),
> conditions for access to and use of public telecommunications transport
> networks and services may include:
>
> (i) restrictions on resale or shared use of such services;
>
>
> (ii) a requirement to use specified technical interfaces, including
> interface protocols, for inter-connection with such networks and services;
>
>
> (iii) requirements, where necessary, for the inter-operability of such
> services and to encourage the achievement of the goals set out in paragraph
> 7(a);
>
>
> (iv) type approval of terminal or other equipment which interfaces with the
> network and technical requirements relating to the attachment of such
> equipment to such networks;
>
>
> (v) restrictions on inter-connection of private leased or owned circuits
> with such networks or services or with circuits leased or owned by another
> service supplier; or
>
>
> (vi) notification, registration and licensing.
>
>
> (g) Notwithstanding the preceding paragraphs of this section, a developing
> country Member may, consistent with its level of development, place
> reasonable conditions on access to and use of public telecommunications
> transport networks and services necessary to strengthen its domestic
> telecommunications infrastructure and service capacity and to increase its
> participation in international trade in telecommunications services. Such
> conditions shall be specified in the Member's Schedule.
>
>
>
>
>
>
> On 5 Mar 2015, at 08:19, JOSEFSSON Erik <erik.josefsson at EUROPARL.EUROPA.EU>
> wrote:
>
> To supplement Amelia, here are Council definitions as elaborated in Brussels
> on 2 March 2015:
>
> (1) “internet access service” means a publicly available electronic
> communications service that provides access to the internet, and thereby
> connectivity to substantially all end points of the internet, irrespective
> of the network technology and terminal equipment used;
>
> (2) “provider of electronic communications to the public” means an
> undertaking providing public electronic communications networks or publicly
> available electronic communications services.
>
> What's still unclear to me (sorry) is whether anything in the TSM package
> change and/or contradict the Telecoms Package (2009/136 + 140/EC)?
>
> Best regards.
>
> //Erik
>
> ________________________________________
> From: bestbits-request at lists.bestbits.net
> [bestbits-request at lists.bestbits.net] on behalf of Amelia Andersdotter
> [amelia.andersdotter at piratpartiet.se]
> Sent: Wednesday 4 March 2015 23:27
> To: bestbits at lists.bestbits.net
> Subject: Re: [bestbits] Net Neutrality - summary of FCC new rules
>
> Dear all,
>
> For completion, the European Union has defined "information society
> services" in 1998 as "'2. "service", any Information Society service,
> that is to say, any service normally provided for remuneration, at a
> distance, by electronic means and at the individual request of a
> recipient of services."
>
> See
> http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:31998L0048&qid=1425507396962&from=EN
>
>
> This should be the amended act:
> http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1425507490929&uri=CELEX:31998L0034
>
>
> These texts have been mostly ignored since 1998, but re-emerged in the
> network and information security discussions after 2013. Some of you may
> be familiar with ongoing discussions of whether internet services should
> be included therein (such as cloud services), due to the heavy
> obligations laid on service providers to collaborate with public
> authorities were that to be the case.
>
> best regards,
>
> Amelia
>
> On 03/04/15 18:15, Nick Ashton-Hart wrote:
>
> Dear Seth and others,
>
> With respect to the last sentence, WTO obligations are intentionally
> designed to be technology neutral; otherwise, trade commitments would be
> out-of-date the moment they were made.
>
> It is widely understood that the Internet, and many activities that take
> place upon it as services, are covered by existing commitments.
>
> I recommend the writings of Hosuk Lee-Makiyama, perhaps the most widely
> recognised expert in digital trade worldwide, many of which can be found
> here:
> http://www.ecipe.org/browse/?subj_subject=41&subj_category=ecipepublications&subj_year=&subj_order=recent
>
> As to classical definitions, the Telecom Reference Paper is probably your
> best source, see here:
> https://www.wto.org/english/Tratop_e/serv_e/telecom_e/tel23_e.htm
>
> I suspect you'll find that despite its age, the reference paper has stood
> the tests of time quite well.
>
> On 4 Mar 2015, at 17:49, Seth Johnson <seth.p.johnson at gmail.com> wrote:
>
> That looks like ISIC.  Thanks.  I'm solid on what the terms mean re
> the Internet and the US telecom policy, just looking for what "the
> source" is at WTO so I can address what WTO's doing on their terms.
> It doesn't seem that there's really a subject-specific cite because
> WTO doesn't really deal with what these terms mean for the Internet.
>
> On Wed, Mar 4, 2015 at 11:25 AM, Jean-Jacques Sahel
> <jean-jacques.sahel at icann.org> wrote:
>
> See this WTO December 2014 update on methodology regarding trade statistics:
> http://webservices.wto.org/resources/meta/def_method_e.pdf and in
> particular:
>
> (i) communications services includes telecommunications, postal and courier
> services. Telecommunications services encompasses the transmission of sound,
> images or other information by telephone, telex, telegram, radio and
> television cable and broadcasting, satellite,  electronic mail, facsimile
> services etc., including business network services, teleconferencing and
> support services. It does not include the value of the information
> transported. Also included are cellular telephone services, Internet
> backbone services and on-line access services, including provision of access
> to the Internet.
>
> [..] (v) computer and information services is subdivided into computer
> services (hardware and software related services and data processing
> services), news agency services    (provision of news, photographs, and
> feature articles to the media), and other information provision services
> (database services and web search portals)
>
> -----Original Message-----
> From: bestbits-request at lists.bestbits.net
> [mailto:bestbits-request at lists.bestbits.net] On Behalf Of Seth Johnson
> Sent: 04 March 2015 16:12
> To: Nick Ashton-Hart
> Cc: Eduardo Bertoni; Marilia Maciel; &lt,bestbits at lists.bestbits.net&gt,
> Subject: Re: [bestbits] Net Neutrality - summary of FCC new rules
>
> Where should I look for those definitions at WTO - information service vs
> telecommunication service?
>
> I use the ISIC.  But that's a breakdown of industries, not of those two
> categories.
>
> Not here:
> https://www.wto.org/english/thewto_e/glossary_e/glossary_e.htm
>
> Or here (telecom, but not info service):
> http://wtoterm.wto.org/multiterm/index.mto?locale=en
>
>
> Seth
>
> On Wed, Mar 4, 2015 at 10:24 AM, Nick Ashton-Hart <nashton at consensus.pro>
> wrote:
>
> These are all well-defined terms in the WTO agreement. Whatever you
> may think of trade policy, it would be wise at least to consider
> carefully these terms in the context of those definitions.
>
>
> On 4 Mar 2015, at 15:44, Eduardo Bertoni <ebertoni at alumni.gwu.edu> wrote:
>
> Dear Marilia,
>
> Thanks for sharing this. I begun working on a short piece in Spanish
> with similar goals: explain the impact of the new rules. The FGV
> document is more than welcome.
>
> For the time being, my humble suggestion is this: for many people it
> is not clear the difference between "information services" and
> "telecommunications services". So I would suggest to explain that
> difference. The concept of "common carrier" might help.
>
> Best
>
> Eduardo
>
> On Tue, Mar 3, 2015 at 6:17 AM, Marilia Maciel
> <mariliamaciel at gmail.com>
> wrote:
>
> Dear all,
>
> The researchers from the Center for Technology and Society of FGV in
> Rio de Janeiro have prepared a concise summary of FCC new rules that
> might be useful. The communities in Brazil are very focused on the NN
> debate since we engaged in a public consultation to further regulate
> the net neutrality principle enshrined in the Brazilian Civil Rights
> Framework for the Internet (Marco Civil).
>
> The document will be updated as more information is made available.
> Comments and suggestions are more than welcome.
>
>
> https://docs.google.com/document/d/12RPZvyWKWxQwg116H8L8hjsoNZqsxEjwF
> 7KBfF-gjqo/edit?usp=sharing
>
>
> Best wishes,
> CTS/FGV
>
> --
> Marília Maciel
> Pesquisadora Gestora - Centro de Tecnologia e Sociedade - FGV Direito
> Rio Researcher and Coordinator - Center for Technology & Society -
> FGV Law School http://direitorio.fgv.br/cts
>
> DiploFoundation associate - www.diplomacy.edu PoliTICs Magazine
> Advisory Committee - http://www.politics.org.br/ Subscribe "Digital
> Rights: Latin America & the Caribbean" -
> http://www.digitalrightslac.net/en
>
>
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