by Digital Rights LAC on January 31, 2015
After a fairly brief discussion, with the limited participation of its own citizens, the National Assembly of Ecuador passed the new Telecommunications Act. One goal of the law is to protect net neutrality, but with an exception that could end up being disastrous for the very principle itself.
by Andrés Delgado
The Telecommunications Act (LOT), which was an initiative proposed by the government through its Ministry of Telecommunications and Information Society (MINTEL), provides high levels of control to the president, while also seeking to ensure user rights, such as the principle of net neutrality, but with some tricky angles to it.
The network neutrality (the isonomic treatment of data packets, irrespective of content, origin, destination, service, terminal or application) that was previously within the regulations on user rights, issued by the National Telecommunications Council, was signed into law and is mentioned in the objectives (art. 3) and principles (art. 4 and 66) of LOT.
The United Nations Human Rights Council recognized the open and global nature of the Internet as a force for progress towards development in its various forms and recognizes that a neutral Internet allows everyone to participate on equal terms.
Even today it is debated whether network giants such as YouTube, who suggest and “personalize” contents through their use of algorithms, or Facebook, who choose what you see on your wall every time you log on, should embrace these principles. Even though these are private services they are undoubtadely used by a large portion of the general public, therefore, it is important to ask if net neutrality is really defined within the new LOT?
Clause 18 of art. 22 dictates that subscribers, customers and users of telecommunications services shall be entitled to:
“[…] access any application or authorized service available on the internet network. Providers may not, block, interfere, discriminate, hinder or restrict the right of its users or subscribers to use, send, receive or offer any content, application, development or legal service through Internet or networks in general or other forms of information and communication technologies, nor may they limit the right of a user or subscriber to incorporate or use any class of instruments, devices or gadgets on the network, provided they are legal”.
The instrument that previously defined net neutrality incorporated concepts of non-discrimination on the basis of brands, which have not been included in this law.
On the contrary, Article 64 of the Act states that “providers of services may establish constituted tariff plans (…) for one or more products of a service”. This is is actually quite worrisome.
|Regulations.- “Service providers must not discriminate arbitrarily or prioritize content, services, applications or other basis of criteria, trademark, source of origin or preference.”||Act.- “service providers may establish tariff plans consisting of one or more services, or for one or more products of a service, in accordance with his or her authorization certificates”|
The fact that the law permits Internet service rate plans (as is already the case with telephone operators) could prove disastrous for the principle of net neutrality. Imagine the effect of having free access to a particular social network while having to pay for others, or that only certain email services can be used without restriction whereas others demand a fee.
The restriction or abuse of this Article will be subject to the corresponding rules, which means that it is vulnerable to changes in policies of the MINTEL. On the other hand, any long-term changes to the law, for better or worse, require a qualified majority in the assembly (half plus one) given its status as an organic law.
The fact that such principles as neutrality are being taken into account at a declarative level in the Telecommunications Act is certainly noteworthy, however detailed definitions and effective mechanisms that allow their application are needed.
We need strategies that are as effective in achieving rights as well as access to the internet. It is therefore very important to create channels for feedback and ongoing consultation with civil society and organizations to develop this type of legislation that impacts the way in which people access and use the internet. It would be advisable for these mechanisms to be applied in the creation of the regulations for this law.