[p2p-research] Fwd: [opennetcoalition] Response to Malcolm Harbour

Wed May 6 04:08:54 CEST 2009

---------- Forwarded message ----------
From: Paolo Brini <paolo.brini at iridiumpg.com>
Date: Wed, May 6, 2009 at 4:46 AM
Subject: [opennetcoalition] Response to Malcolm Harbour
To: opennetcoalition at laquadrature.net, monica.horten at iptegrity.com, "Erik
Josefsson - kandidat till Europaparlamentet (v)" <
erik.josefsson at vansterpartiet.se>, Eamonn Wallace <eamonn.wallace at gmail.com>,
Jim Killock <jim at openrightsgroup.org>, Gillian Hunter <
gillian.hunter at aardmaan.com>, Mike Kiely <Mike.kiely at pnsol.com>

 This is the response to Malcolm Harbour.

Me and Eamonn are pondering about to send it to all MEPs and as a reply in
the europarl site (it is moderated).

Let me know what you think.

If we want to send to MEPs, it would be good to send it during the night,
just in case someone could read it before tomorrow's vote.

[FOR IMMEDIATE RELEASE]

 *OpenNet coalition rebukes claims of "fantasising"*

The OpenNet coalition, which is managing the Blackout Europe site, today
reacted to claims made by Mr. Malcolm Harbour, MEP.

The following quotes are taken from a
statement<http://www.europarl.europa.eu/elections2009/welcome/headlines.htm;jsessionid=5527B1F126E4DC26048AB382700CA932.node2?language=EN&ref=20090504STO54873&secondRef=0#debate>released
by Mr. Harbour on the
05-May-2009.

 *"According to rumours in cyberpsace the proposed new rules will impose
conditional access to internet, providers will be able to limit the number
of site you're visiting and Skype could be blocked. Is Internet freedom
really at risk?*
 * *
 *That's pure fantasy. The Telecoms package has never been about anything to
do with restrictions on the internet. I am astonished to see this remarkable
text from Black-out Europe. There is absolutely nothing in this proposal
that says anything about that."*

We want to highlight taht it is Mr. Harbour who  is understanding that
"conditions limiting access"  are the same than restriction. He is asked
about conditions and limits and responds talking about restriction. Either
Mr. Harbour is deliberately attempting to mislead or does not comprehend the
impact and consequences of his amendments. This is astonishing in light of
the fact that Mr. Harbour is a native English speaker and has inserted words
like "limitations" and "conditions" into his amendments.

 Also in a letter from MEP Roger Helmer, citing a conversation with Mr.
Malcolm Harbour: *"This would mean that if Internet Service operators decide
to restrict access to certain services (which is the current situation, for
example, where Skype is currently blocked on some mobile phones), the
consumer could then decide not to use that service provider and opt for
another one, which does provide Skype."* (letter from MEP Roger Helmer, 14
April 2009, speaking about the Universal Services Directive). Therefore
blocking of applications is already foreseen by the same MEPs who support
the Harbour report. The core of the problem is that competition law deals
only with market dominance, and cartels in a clearly defined market
(Articles 81 and 82 of the EU Treaty). It cannot deal with situations where
content, applications or services are blocked by a network operator, or
where a network operator does a preferential deal with one content provider
to the disadvantage of all others. Clearly this, as an option, is nonsense.
Providers have a lock-in period of up to 24 months.

 Finally, Mr. Malcolm Harbour, speaking at an EU conference hosted by the
Czech Presidency on April 16th last month.

 *"On the question of network neutrality, so called, which I think has been
vastly over-inflated in all of this debate, the Commission has quite rightly
identified the fact that there is a potential  - a potential - for operators
to use differing quality of service provision in a discriminatory way, for
example,  by giving a higher  capacity or better service quality to their
own services as opposed to those of competitors. The commission made a
proposal, the council amended that and we agreed.

But the fact remains that any other service limitations which are
anti-competitive, and they could certainly include restrictions on access to
competitive services like voice over IP, have and can be dealt with by the
regulators under the existing framework of competition and access
regulation. And that is clear. But what is fundamental is that customer
needs to  know if there are service limitations and customers may wish to
buy a package with service limitations if it is cheaper...There is nothing
illegal about service limitations, provided they are not anti-competitive...
"
*

 http://www.mpo.cz/dokument58764.html ; timing 02:02:26 - 02:04:49

*
"One of the last outstanding issues during the talks between MEPs and
Ministers was measures regarding access to electronic communications
services. How do the new proposals concern users' internet access and use? *
 * *
 *This directive package has never been about copyright enforcement. The
Parliament cannot impose on a country conditions about how it organises its
judicial system. That is a basic element of subsidiarity."

*Who talked about copyright enforcement? Why does he refer to copyright
enforcement when he is asked about last talks between MEPs and Ministers?
This statement clearly is in contrast with efforts by the French government
to legitimise in the EU the Hadopi laws, commonly known as "3 strikes" and
you are out.

*"You might choose to have a service-limited package; nobody has ever
suggested that we have a general rule that if you buy an electronic
communications service package you will have access to everything. That's
like saying that if you have a bookshop you are legally obliged to stock
every book."
*
 This clearly demonstrates that Mr. Harbour proposes to limit access to the
Internet or completely misunderstands the basic fundamental concepts of the
internet. These concepts have been in place since the inception of the
Internet, if they are to be changed then the least we clearly expect is
honesty and transparency. Electronic Communication Providers have "conduit"
status, their function is to move data from consumer to an endpoint, like a
website. Clearly the internet is not a bookshop, it is more like a public
library, however the doorman can not decide which rooms we can visit and
which books we can read. On the Internet, net neutrality guarantees
consumers access to whatever site they wish to visit.

According to Tim-Berners Lee, inventor of the World Wide Web, Net Neutrality
is simply defined as follows: if I pay for an Internet access with a certain
QoS, and you pay for an Internet access with the same or higher QoS, me and
you can connect. This is the basis of the end-to-end connectivity capacity
of the Internet. Providers have so far furnished the end-to-end connectivity
under a legal regime of "mere conduit", as stated by Directive on the
Electronic Commerce 31/2000/EC, which means that they are not held
responsible for the contents which flow in their network. This is the basic
principle of the Internet as we know it.

 Without Net Neutrality, we would not even have the World Wide Web, not to
talk about even more advanced technical features like distributed boards and
p2p technology. It's Net Neutrality which allows bloggers, anywhere in the
world, to compete on an even playing field without any editorial
impositions. Net Neutrality grants freedom of information and freedom of
speech and allows start-ups to play on an even playing field with giant
media companies. Net Neutrality does not mean that providers are obliged to
give users the highest QoS and bandwidth regardless of price. It simply
means that providers must guarantee end-to-end connectivity regardless of
price.

 The vision of the network explained by Mr. Harbour with the "bookshop
analogy", is not a known vision or analogy for the Internet,  it is a series
of networks which are interconnected , except for very basic services, hence
the meaning of the word internet (the network of networks).

 *"How much should the Internet be policed, if at all?*
 *   *
 *Clearly the internet has to be policed because it is being used for
illicit activities such as terrorist activities, child pornography, child
trafficking and so on.The basic principle is that internet always has to be
a free internet, but it is not completely regulation free."
*
Not completely regulation free? So regulation is the key concept here...
what form of regulation? Blocking Skype? Blocking various unsavoury
websites? Who will pay for this? We'd just like to remind Mr. Harbour that
countries that engage in this practice are usually totalitarian regimes.
Have our MEPs become so divorced from reality that they care more for large
US corporations than for the consumers they are empowered to protect? They
seem to want to impose censorship on EU citizens because allegedly somebody,
somewhere "might" commit a crime? So instead of due legal process they would
prefer to block all websites that are deemed to be "unlawful". Who will
decide which of these sites are illegal? Media Companies, Scientologists,
religious groups or perhaps MEPs themselves?

In any case, the telecoms package is not the place to regulate the Internet
and regulation on the Intenet can not  be more restrictive than regulation
in the offline world. Child pornography and other disgusting activities
already have clear remedies and guidelines in place to be dealt with. To
include all normal people in the ranks of those who perform these clearly
unsavoury or illegal activities, is demeaning in the extreme and is also
attempting to blackmail all ordinary users into guilt by association. This
is emotional blackmail.
*
Wikipedia amendments
*These UK amendments are allegedly copied and pasted directly from
Wikipedia. There is a striking similarity between the entries on Wikipedia
and the amendments referred to above.

In a Report from Mr Harbour, released on 23 February.

Amendment 128, tabled by Mr Harbour, is about what access providers have to
put in their contracts with Internet subscribers - it  includes the
text "*limitations
regarding access to and/or use of services and **applications".*

Now follow the consumer amendments "championed by Mr. Malcolm Harbour" UK
amendments, (which were also included in the Council compromise
proposals<http://www.laquadrature.net/files/DS177_9_2009_02_27_print.pdf>and
seek to limit access to the Internet). We ask you to judge for
yourself
if Mr. Harbour is telling the truth or attempting to mislead the citizens of
Europe.

Furthermore this is one of the amendments tabled by Mr. Malcolm Harbour

 "Article 2a. This Directive *neither mandates nor prohibits
conditions*, *imposed
by providers* of publicly available electronic communications and services,
*limiting users' access to and/or use of services and applications*, where
allowed under national law and in conformity with Community law, but does
provide for information regarding such conditions". This clearly, in our
opinion, allows for limitations to be imposed, if they are not prohibited
then they are allowed.

Also in a recent speech "High-Level Seminar on e-Communications "Future
Europe: Modern Communications for Everyone" Mr. Harbour clearly stated :
"There is nothing illegal about service limitations, provided they are not
anti-competitive... "

Finally, with all the due respect, we would like to remind Mr. Harbour, that
the OpenNet coalition, which operates the Blackout Europe
site<http://www.blackouteurope.eu>,
is composed of NGOs from nearly all Member States, lawyers, analysts,
consumers rights association, telecommunication experts and almost 200
Internet Service Providers; therefore it is at least misinformed to define
our analysis as "pure fantasy". As we showed above, the analysis is
substantiated and strictly based on legal text.

###
ENDS

ABOUT the Europe wide OpenNet coalition

 La Quadrature du Net - France - www.laquadrature.net - Jérémie Zimmermann
The Free Knowledge Institute - The Netherlands - www.freeknowledge.eu -
Wouter Tebbens
Exgae - Spain - Simona Levi - exgae.net
ISOC-ECC - Pan-european - Christopher Wilkinson - www.isoc.org
EBLIDA - Pan-european - Andrew Cranefield - www.eblida.org
European Digital Rights EDRi - Pan-european - Niels Elgaard Larsen -
www.edri.org
FFII - Pan-european - Iván F. Villanueva - www.ffii.org
Open Rights Group - UK - Jim Killock
Föreningen fri kultur & programvara.- Sweden - Jonas Öberg
Asociación de Internautas - Spain - Víctor Domingo
AK Vorratsdatenspeicherung - Germany - Ralf Bendrath
e-frontier - Bulgaria - Bogomil Shopov
FoeBuD.- Germany - Florian Glatzner
Center for Media and Communication Studies (CMCS) - Hungary -
www.cmcs.ceu.hu - Laura Ranca
Associazione Scambio Etico - Italy - www.scambioetico.eu - Paolo Brini
Altroconsumo - Italy - www.altroconsumo.it - Marco Pierani
NNSquad Italia - Italy - www.nnsquad.it - Vittorio Bertola
Istituto per le Politiche dell’Innovazione - Italy -
www.istitutoinnovazione.eu - Guido Scorza
P2P Foundation - Pan-european - p2pfoundation.net - Celia Blanco e Michel
Bauwens
Associazione per il Software Libero - Italy - Marco Ciurcina
Hispalinux - Spain - Jorge Fuentes
NEXA Center for Internet & Society al Politecnico di Torino - Italy - Juan
Carlos de Martin, Marco Ricolfi
Aktion Freiheit statt Angst e.V. (i.Gr.) - Ricardo Cristof Remmert-Fontes
Ireland Offline - Ireland - Eamonn Wallace
Assoprovider - Italy - www.assoprovider.it - Giovanbattista Frontera

For more information on the organisation, please visit the Blackout Europe
website at http://www.blackouteurope.eu
or contact us at blackout.europe at gmail.com <info at blackouteurope.eu>

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