Net Neutrality in the Time of Covid-19
By Zsuzsa Detrekői
Internet providers might have no choice but to break net neutrality rules. If it benefits us all, regulators will likely turn a blind eye.
Covid-19 brought us extraordinary times, with nationwide lockdowns forcing people to work from their kitchens and homeschool their children. As a result, in the past few months, the internet traffic has exploded worldwide. Akamai, a firm tracking web activity, estimated in mid-March that the average global internet traffic increased by more than 50%.
But not only for working and learning do people need the internet. Staying entertained also requires bandwidth. No surprise then that streaming traffic has also increased in recent months. Pornhub, a video platform doing what its name says, extended its premium service free-of-charge in order to keep people at home, further pushing up the traffic.
In most cases, responding to the growing need of data, service providers have acted responsibly during this extreme crisis, by either giving free extra data to users (as did Proximus in Belgium and the three mobile operators operating in Hungary) or waiving the subscription fee for a month (as did Orange in France for its customers using the children’s paid package).
In the U.S., Comcast opened its Wifi networks to non-subscribers while AT&T offered not to charge customers unable to pay their bills as a result of the pandemic. Zero-rating, a practice where telcos do not charge users for data on certain applications, has been extended for homeschooling applications in several regions in Hungary. Vodafone zero-rated medical information apps in all European markets where it operates.
Data, Loved More Than Ever
But as internet providers are struggling to accommodate increasing traffic, net neutrality rules are going to experience serious challenges during the crisis.
The purpose of net neutrality rules is to ensure that the net infrastructure is neutral by prohibiting internet service providers to block, slow down or prioritize traffic. Traffic management measures should be reasonable, transparent, non-discriminatory and proportionate, based on objective technical differences, according to legal provisions in place in some countries.
Service providers are allowed to apply exceptional traffic management measures including steps to prevent network congestion and mitigate the effects of such congestion, but they always have to ensure that equivalent traffic categories are treated equally. In other words, they can reduce your internet speed, but without advantaging or disadvantaging any of the applications or platforms.
To prevent the collapse of the net infrastructure, Thierry Breton, the EU Commissioner for internal market, asked Netflix, YouTube and Amazon (which operates the video-streaming service Prime Video) to reduce the bitstreams of videos and halt High-Definition (HD) streaming. All three companies agreed. Sony followed suit, slowing the PlayStation game downloads in Europe.
In Spain, local operators jointly urged people to cut back unnecessary internet traffic and to rely on traditional phones, not mobile phones, as much as possible.
“A rational and responsible use of the networks will allow us all, service providers, companies and individuals, to ensure that we will have quality communication in a sustainable way,”
the local operators said in a joint statement.
Regulators also reacted. The Riga-based Body of European Regulators for Electronic Communications (BEREC), the pan-European telecom watchdog, called on operators, in case of impending network congestion, to consider various measures including objectively assessing the levels of traffic compared to a similar period and ensure that any exceptional traffic management measures are proportionate to the seriousness of the problem observed.
BEREC said in a statement that an exceptional congestion should be understood as a situation where unpredictable and unavoidable congestion both in the mobile or fixed networks appear in spite of the professional manner of running the network.
The Federal Communications Commission (FCC), the U.S. telecom regulator, granted Verizon, AT&T and T-Mobile temporary access to more airwaves to ensure that their networks are up and running.
Bending the Rules for the Benefit of All
So far everybody seems to react in a responsible way. But it will be hard in some cases to fully comply with net neutrality rules in such a critical period.
For example, in cases of traffic congestion, some of the internet service providers will have to choose between types of contents. If asked to choose, for example, between Pornhub and a homeschooling app, it is very likely that operators will prioritize the latter. But in doing so, they risk legal repercussions. BEREC clearly said that equivalent categories of traffic should be treated equally.
In theory, authorities must either punish those service providers that prioritized a platform (say, the homeschool app in our example) for violating the regulations, or somehow prove that those two services are not “equivalent traffic.” Choosing the second option will be problematic because it will create a precedent where regulators will grade content, a practice that contradicts the original purpose of the net neutrality regulations, which was to prevent any discrimination between types of contents and applications.
In Europe, zero-rating cases that breach net neutrality principles are very likely to appear during the Covid-19 crisis. However, given how grave the current health situation is, authorities are not expected to punish service providers. Even if these providers zero-rate in a discriminatory and not-transparent way apps such as homeschooling and medical information apps or remote work assisting programs, authorities would not launch an investigation (although they are legally required to do so in normal conditions).
In contrast, in the United States, where net neutrality rules were scrapped in 2018, voices calling for reinstating net neutrality rules are likely to gain traction during the crisis, especially if the internet service is disrupted. But it’s very unlikely that the Trump administration, known for its unwillingness to alter its policies, however bad they are, will succumb to such pressures, even in cases of extreme internet connectivity disruption.
Zsuzsa Detrekői is a TMT lawyer and the former general counsel of a major Hungarian online content provider. Currently she is legal counsel of a major ISP in Hungary. She also provides legal support for the Association of Hungarian Content Providers. Her research area is online content and internet related regulations about what she wrote her thesis on and achieved PhD in 2016. She is a Fellow at the Center for Media, Data and Society.
