EU Telecom Reform Deal Includes Internet Disconnect Safeguards

The compromise replaces controversial Amendment 138, which prohibited Internet access termination without a prior court order except in national security cases. The measure, which now needs final approval from the European Parliament and governments, requires that measures affecting end-users’ access respect fundamental rights and freedoms as guaranteed by EU law. They may only be imposed if they're appropriate, proportionate and necessary in a democratic society, and subject to “adequate procedural safeguards” such as due process, the presumption of innocence and the right to privacy.

The original amendment clearly signaled what lawmakers wanted, said Alejo Vidal-Quatras, European People’s Party, Spain, who headed parliament’s negotiating team. But EU legal services said parliament lacks jurisdiction to force EU states to require prior judicial rulings before cut-off and the provision could be successfully challenged in the European Court of Justice (ECJ), he said at a press briefing. Once the new rules are in place, any body that adjudicates Internet access terminations, whether judicial or administrative, will have to consider individuals’ rights, a requirement that isn’t in existing law, he said.

Some say the revised amendment will make so-called “three-strikes” responses to digital piracy possible, said Catherine Trautmann, Progressive Alliance of Socialists and Democrats, France, who authored one of the legislative reports on European Commission telecom reform proposals. The compromise clarifies the need for a prior decision before cutoff, she said. Governments can order Internet access disconnection but must justify it, she said. Measures which cut off Internet use without prior procedures “will not become part of European law,” Information Society and Media Commissioner Viviane Reding added.

The new rules are “unprecedented across the globe,” Reding said. Europe is sending a strong signal that it takes fundamental rights seriously, particularly in the information society, she said.

Number Portability, Other Rules Set

The telecom package is about more than Internet termination, Reding said. Among other things, it provides for net neutrality, allowing national authorities to impose minimum service levels. It sets the stage for high-speed broadband for all, opens new spectrum for mobile services, and promotes competition for high-speed fiber rollout, she said. And it creates a new body of national regulators to make more consistent decisions, she said: “Europe has its FCC.”

Other key reforms, also agreed upon months ago but held hostage to the amendment 138 debate, include new phone number portability rights, and requirements for telecommunications providers to give consumers better information on services they subscribe to, the EC said. Customers of phone companies and ISPs will have enhanced protections against personal data breaches and spam. Rules for access to emergency numbers have been expanded from traditional telephony services to new technologies.

The package gives national regulators more independence from political interference, and the EC more power to oversee competition conditions they impose, the EC said. Regulators will be able, in appropriate circumstances, to order telecommunications providers to split their networks and service branches, it said.

The legislation confirms Europe’s commitment to open and competitive telecom markets that will benefit consumers, European Competitive Telecommunications Association Chairman Innocenzo Genna said. The EC, governments and regulators must now remove remaining roadblocks to competition and “resist the temptation to protect dominant firms,” he said. The EU must now create the right incentives for investment in next-generation access networks, the European Telecommunications Network Operators’ Association said.

The parliament and council are expected to vote on the new text by the end of November, the European Commission said. If approved, the entire telecom package will become effective in early 2010. The new regulatory body will be installed in the spring, and states will have until May 2011 to adopt the package into national law, it said. If either body fails to okay the provisions, the entire regulatory package falls, parliament’s Industry Committee said. Legislative approval is “just a formality” since all parties have agreed to the compromise, Engstroem said.

‘Half-Way Protection'?

Although it doesn’t explicitly guarantee Internet users’ rights to a prior judicial ruling, the compromise at least sets procedural safeguards that must be followed, the European Consumers’ Organization said. Everyone now acknowledges that individuals have fundamental rights in the digital world, said Director-General Monique Goyens. But those rights will be useless if laws such as France’s three- strikes regime are allowed to be enforced at a national level, she said.

What’s needed is a rethink about what constitutes illegal downloading and an evaluation of its supposed economic harm to the music and film industries, Goyens said. A recent study showed that 72 percent of people who admit to unlawful downloading are the ones who spend the most buying legal content, she said.

The new provision contains “ambiguous language and potential loopholes,” said digital rights group La Quadrature du Net. Invalidation of “freedom-killer” laws such as three- strikes will now depend on interpretation by the ECJ and national courts, it said. Moreover, the text only relates to government actions and doesn’t stop telecom operators and the entertainment industries from “knocking down the founding principle of net neutrality,” it said.

Those sectors are now lobbying fiercely for the Anti- Counterfeiting Trade Agreement (ACTA), La Quadrature said. Leaked documents indicate the U.S. plans to pressure ISPs to “self-regulate” where “self-regulation takes on the new meaning of ‘become an unwilling vigilante to defend the rights of third parties,'” said Joe McNamee, European Digital Rights advocacy coordinator. Presumably, the U.S. expects a similar approach from countries “they are railroading into this agreement,” he told us.

If that approach succeeds, the compromise on amendment 138 will have no effect because it only covers government acts, McNamee said. ACTA is part of a wider move to “self- regulation” that’s spreading quickly from terrorism to intellectual property and that poses serious risks for citizens, he said. The processes are not open and they fall outside the scope of democratic decision-making, he said. If anything, the brouhaha surrounding amendment 138 “will encourage governments to avoid the nuisance of public decision-making,” he said.

But an EU lawmaker from Sweden’s Pirate Party said the compromise was surprisingly good. At least it provides protection against three-strikes laws that lack provisions for prior review, said Christian Engstroem of the Greens/European Free Alliance.

The Pirate Party doesn’t think shutting off Internet access is acceptable because the Internet is at least as important as mail, telephone and other services which aren’t disconnected just because someone commits a crime, Engstroem said. The compromise will, however, prevent the development of fast-track systems for handling infringement cases and ensure that companies seeking to punish downloaders go through proper -- and more expensive-- procedures, he said. - - Dugie Standeford