Dutch Treat: An Open Internet
Dutch Treat: An Open Internet
Dutch Treat: An Open Internet

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    You have to hand it to the Dutch.  On one hand, they crack down on their biggest
    tourist attraction – the ability of tourists to toke up legally in the famous
    cannabis cafes.  That’s a big business
    over there and of course there are protests developing, mellow ones with lots
    of hungry people involved, to be sure.

    On the other hand, they also did something truly
    radical.  Earlier this week, the Dutch government gave final
    approval to one of the strongest open Internet laws in the world.   Imagine that. 
    A government guaranteeing through law that Internet connections can’t be
    manipulated by big telecom companies.   The chances of that happening here are roughly
    equal to marijuana being legalized – not just offered through clinics, which
    could then be raided by law enforcement. 
    (Of course, Europeans also do things like protect consumers from high
    rates and save people money.  Perish the

    The Dutch law, a first in Europe, is straightforward and comprehensive.  According to a translation, here are the guts
    of it:

    Providers of public electronic communication networks which deliver internet
    access services and providers of internet access services do not hinder or slow
    down applications and services on the internet, unless and to the extent that
    the measure in question with which applications or services are being hindered
    or slowed down is necessary:
    a. to minimize the effects of congestion, whereby equal types of traffic should
    be treated equally;
    b. to preserve the integrity and security of the network and service of the
    provider in question or the terminal of the end user;
    c. to restrict the transmission to an end user of unsolicited communication as
    referred to in Article 11.7, first paragraph, provided that the end user has
    given its prior consent;
    d. to give effect to a legislative provision or court order.

    There are two other parts to the law.  One sets out the conditions under which a
    subscriber may be disconnected, and the third is characterized as an
    “anti-wiretapping” provision.  For those
    who are constantly pushing for monitoring of consumer traffic to detect
    potential infringements, this part of the law would be, shall we say, totally
    unacceptable because it is based on providing customer privacy.

    Notwithstanding the Dutch Penal Code and the provisions set out in or by way of
    this act, the provider of a public electronic communications network and the
    provider of a public electronic communications service ensure the
    confidentiality of the communication and the related data via their network or
    their services.

    2. The provider
    of a public electronic communications network and the provider of a public
    electronic communications service shall refrain from the tapping, listening, or
    other kinds of interception or surveillance of communications via a public
    electronic communications network or public electronic communications service
    and the related traffic data, unless and to the extent that:

    a. the
    subscriber in question has provided is explicit consent for these actions;
    b. these actions are necessary to ensure the integrity and security of the
    networks and services of the provider in question;
    c. these actions are necessary to ensure the transmission of information via
    the networks and services of the provider in question; or
    d. these actions are necessary to comply with a legislative provision or a
    court order.

    3. Prior to
    obtaining consent as referred to in paragraph 2, sub a, the provider provides
    the subscriber with the following information:

    a. the type of
    data which is being tapped, listened, intercepted or surveilled;
    b. the purposes for which the data are being tapped, listened, intercepted or
    c. the duration of the tapping, listening, intercepting or surveilling of the

    Remember, these are rules for the country with the best
    Internet access rankings in Europe.   According to Akamai’s State of the Net report
    for 4Q 2011, the Netherlands was 4th in world in highest average
    connection speed, (U.S. was 13th ) at 8.2 Mpbs – the highest in
    Europe.  It was also 2nd in
    the world with the percentage of subscribers above 5 Mbps – 67% (U.S. is 12th)
    and 6th in percentage of customers above 2 mbps, 94%  (U.S. is 35th, with 80%).

    The Net Neutrality laws were enacted in a hyper-competitive,
    super-charged market in which cable has captured around 40 percent of the
    Internet-access business in an environment in which both telephone and cable
    companies have to unbundle their networks and offer service to competitors.  It is, in short, the kind of network the U.S.
    could have had – robust, constant competition between and among copper, fiber
    and cable networks – but which U.S. regulators chose first to take apart during
    the Bush Administration and now to ignore generally in the Obama years.

    It’s probably a little inconvenient and awkward (declasse?) to bring Net
    Neutrality back to the discussion after all these months.  After all, it’s nothing more than intrusive
    government trying to tell business how companies should treat their customers,
    right?  Wrong.  Just as Dutch policymakers recognized the
    need for open networks in a regulatory structure far more competitive than
    ours, the requirements for an open, neutral network are even more important as
    U.S. policymakers stand idly by while the industry consolidates and grabs even
    more power.

    Comcast’s questionable exemption of its data caps for the
    Xbox 360 is just the latest example, one that Netflix illustrated simply and
    starkly in a presentation to the Federal Communications Commission staff.  Material is exempt from caps when the carrier
    generates it.  It is not exempt when it
    comes from another source, like over-the-top programming or video like Comcast.

    In recent weeks, there have been two technical analysis of
    Comcast’s video traffic.  In one, Bryan
    Berg, founder/CTO at
    Mixed Media Labs, found after looking at the headers on packets:  “The
    bottom line: Comcast built an Internet video streaming service. In certain
    cases, it exempted that service from bandwidth caps despite evidence that those
    streams are actually more expensive to deliver. It even appears that Comcast is
    prioritizing its own video streams over the other services.”

    Similarly, Dan Rayburn, executive vp of StreamingMedia.com, got
    his own data
    and reached the same conclusion: 
    “One of the
    points in that document [setting terms for the merger] says that, ‘Comcast shall not
    prioritize Defendants’ Video Programming or other content over other Persons’
    Video Programming or other content.’ While Comcast agreed to these terms and said they would not
    prioritize their video traffic over someone like Netflix, that’s exactly what
    they are doing.”

    Porter, economics columnist of the New York Times, lent his persuasive and
    authoritative voice to the discussion on May 8, when he published a strong
    piece in favor of a neutral Internet.  He
    wrote:  “Imagine a network of private
    highways that reserved a special lane for Fords to zip through, unencumbered by
    all the other brands of cars trundling along the clogged, shared lanes. Think
    of the prices Ford could charge. Think of what would happen to innovation when
    building the best car mattered less than cutting a deal with the highway’s

    hit all the high points – the harm to innovation, the lack of customer choice
    of Internet Service Providers, the costs to consumers the locked-up market
    brings – and concluded the FCC “ appears to have made the wrong call” when it
    did away with the requirement that carriers share their lines with others.  The pending cartelization between Verizon and
    the big cable companies “suggests a market carve-up is about to take place,
    with Verizon focusing on wireless broadband and cable companies on wires into
    the home.”

    took on the Federal Communications Commission (FCC) saying that, “right now,
    regulation appears weak. The F.C.C. has net neutrality
    rules. But the agency lost one neutrality case against Comcast
    in 2010, and Verizon is challenging the new rules issued in
    response to the ruling. The rules, moreover, have loopholes. For instance, they allow broadband
    providers to allocate portions of their pipes for special ‘managed’ services.”  Porter is right.

    was particularly cheeky of FCC Chairman Julius Genachowski on May 8 to list to
    the wireless industry at its annual conference that among the FCC’s
    accomplishments was “establishing rules of the road to preserve Internet
    freedom.”  Those rules, now under court challenge, basically exempted

    Porter’s conclusion, too, was right on point:  “Fifty years ago, consumers were allowed to hook
    up only Bell telephones to their Bell phone lines. But in the 1960s, the F.C.C.
    and the courts forced the Bells to accept any device that didn’t threaten the
    network. The decision unleashed a torrent of innovation — including the
    answering machine, the fax and the first device that allowed us to explore what
    would become the Internet: the modem.  Innovation
    online requires an open playing field, too.”

    The conclusion
    should be clear:  Without an open
    network, and more competition, U.S. innovation will go up in smoke.