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All of this just to play with toy cars…

Paris, 6 November 2017 - La Quadrature du Net republishes below an op-ed by Oriane, President of the French Federation of associated providers of internet access, regarding the European Electronic Communications Code and its political implications. This op-ed was originally on her blog (in French).

First reading notes on the Telecoms Package.
As you may know, I have made a cursory reading of the European Telecommunications Code (Telecoms Package). Here are my first impressions, taken from my reading notes. They're a little late, they're mostly about the text's introduction, but it's better than nothing.

What is the Telecom Package?

Let's begin with a bit of context: the rules that oversee telecommunications in Europe today are spread over a number of texts1. In 2009, this corpus was revised and conveniently named “Telecoms Package”2. I still refer to this corpus of legal texts by this name because it is convenient. It is indeed a “legislative package”!

Following the 2015 regulation on the Open Internet and in line with the Digital Single Market goals, the Commission decided to undertake a new reform! The idea was to take all these scattered directives and assemble them back into a single directive. In itself a worthwhile thing to do. Except that it became an opportunity for the Commission to stick its nose into absolutely every text that oversees the telecoms market in Europe. It was announced as a minimal reform. Obviously it was not: it was the chance to slip loads of small changes in everywhere (and God knows that, in European Law, the Devil is in the details) under the guise of tidying it all up.

This is the dossier the FDN Federation's Regulation group chose to tackle. We know that the Telecoms Code isn't something one tinkers with every other day (more like every five years). We know the stakes are high. This text defines the frameworks of what the telco market will become in the next five years (which is to say, eons in Internet time): this is where that the European regulator, BEREC, is going to find the weapons to do its job. If certain practices need to be punished, this is where it will find the tools to do so. If one wants to see operators converge at a European level, this is where the conditions will be laid down. An enormous amount of things are decided at the European level.

A framework of interpretation centred on public interest

For us, there are important questions at the economic level: is there a place for small, alternative and local operators in the Digital Single Market? When the directive that birthed the BEREC reaches a quarter of a century, will we still be along for the ride? In all likelihood, our non-profit organisations will still be there, and they will keep working on analysing and defending Net neutrality. What space will be left for them in a largely hostile global telecom market is less clear.

Paradoxically, these aren't the most concerning questions. Before we worry about this, there is another set of questions which stems directly from our mission as defenders of Net neutrality: what society does this five-year plan for telecoms in Europe envision? Is it compatible with what we want? This question, this issue, is our first cause for concern. From this concern grows a framework of interpretation of telecoms regulation texts focused on their contribution to the public interest. Indeed, given that we do not defend any shareholders – we defend our members – we have a social project around the Internet. Strangely, this gives us a focus that is closer to public service than an operator's classic outlook.

What's the Commission's vision for society?

What I present to you here is my first impression. The text which follows mainly concerns the opening statements of the legislative text itself, the one where the Commission explains why it's important that we arm ourselves with a unified Code for telecommunications in Europe.

Starting form the beginning: when I started reading the text, I presumed that, being integrated as it is in the strategy of the Digital Single Market, produced by the Commission, which is an executive body in Europe, it would bear a political project. Having a political project means having a certain idea for society, an idea of what we're heading towards when taking legislative measure, reforming, allocating the budget to institutions. In Kantian terms (yes, I know), to have a political vision is to pursue an end and to accord all means at one's disposal towards reaching it. Thus, we don't build the same society (we don't pursue the same end) when we allocate the budget towards research and take measures that protect the privacy of constituents as we do when when we allocate budget towards the police and vote for laws to spy on people.

For me, the role of the Telecoms Package's opening text is precisely to give the legislator (European parliament, which studies the text) an idea of the outcome intended by the Commission, before presenting the means to get there (the legal provisions). So we've got twenty-odd pages meant to explain the Commission's vision, its findings, its goals, the impact studies it's carried out. I've read the text asking myself: "Before even knowing what the reform contains, what end is it aiming for? And is this end compatible with the goal that I myself aim for?

Well, despite the Commission's statement on their website (i.e. The European Commission "promotes the general interest"), the "public interest" is hardly present in the opening text3. Makes you wonder if the Commission wasn't actually making fun of us, given how easy it is to add something along those lines in an introduction (I'm not even talking about making it binding). Or, another option: we should straight up assume that public interest wasn't really the point of this reform, in which case they should take responsibility for it, and also change the website's grand title.

Launching a big reform of the European framework on digital issues, despite what the text's rapporteur Ms del Castillo may think, is not just aiming for 5G in 2025 – that's just a means. We're talking about changing the rules of the game that builds the main link between Europeans today. Yes, not just between companies and consumers, but between all Europeans. It's no little matter. It's what allows universities to lead fascinating research projects across several EU countries4, it's what makes it possible to be born in Brussels, study in Madrid and then set up a start-up in Berlin (wihtout losing touch with your family), it's what makes it possible to chat on Twitter with Thomas Pesquet who is on the board of the International Space Station. What people care about, the real game changer, isn't where 5G will be deployed or whether they can drive smart cars to work tomorrow.

What people do care about is, for instance: can they access information and cultural content from their house in the countryside like everybody else, or will it be restricted during peak hours? And not "tomorrow" as in 5 years from now, when a service provider will finally get around to it. Tomorrow as in within 48h, because they already have those needs and cultural practices5. The real question is: will the network give equal access to culture and information to all? Or should we just accept that some citizens will be second class and not be able to watch the same shows as everyone, because an email with a couple of holiday pictures is as much as their internet can handle? The end is connecting them to public space. The network is just the means.

When I started writing this article, the European Commissioner for Digital Society was Günther Oettinger, of whom we know that he has ties to the automobile industry and pays an ear to their arguments. Smart vehicles6 are the reason behind many features of the Telecom Package. This trend remained the same even though the file changed hands. Again, the text focuses on the means (like smart vehicles), but not the end.

The following is a brief overview, from my notes on the introduction, of the text's backbone assumptions. Please note that these are only sidenotes, and while I could produce a in-depth analysis of the text, due to time constraints I'd rather publish this than nothing (analysing a legislative text word-by-word is really time-consuming, and I still have a PhD to work on). Still, I believe that the introduction sets the tone for the rest of the text and can help in shedding some light to it all.

Distant from the citizens to make the shareholder's heart grow fonder

The introduction goes wrong at the very start, when it largely focuses on technology to set the context of this regulation. Naturally, the Commission then doesn't aim any further than facilitating the use of technical elements across the European territory. What a waste, a text pretending to be this great Code of Telecommunications, only to actually seriously lack ambition. These observations focus on means instead of ends, and that is why they lack vision.

Yet, with an opening sentence on how much the world has changed "since 2009", we could have expected a more general picture of what Europe has become, thanks to digital technology. A picture of what has been made possible thanks to the democratisation of access and of technical equipment. Which is not exactly what we find here. Moreover, we are promised "more innovation" in the future. But innovation isn't a value in itself or a plan for society. Improving mobility between Member States and communications between citizens to strengthen their ties, that's a project, that's an end. The means would for instance be abolishing roaming. In that case, you can see what the means and what the end is.

I have no idea what kind of project innovation stands for. Innovating, sure, but for what, and mainly, for whom? It is far from clear that it will profit everyone. Not clear at all. Do you really think the incredibly expensive gadgets that we've seen at CES (one of the faces of "innovation") will benefit most people? That they will decrease unemployment? That they will further civic rights such as freedom of expression, or insure diverse information in a democratic society? Really? Are the biggest problems that challenge Europe today (rising extremism, migratory flows, etc.) truly going to be solved by smart cars or smart shower heads?

As we keep reading, we find part of an answer. The word "consumer" comes back time and time again, throughout the whole legislative text (159 occurrences in the version from September 2016, without even counting the numerous amendments. The word "citizen" only appears 27 times in 238 pages). Clearly this text is not about citizens, but about "consumers". I don't know about you, but I wouldn't like my civil rights to be limited to consumer rights. It is pretty shocking, to see yourself be relegated from citizen to an individual pushing a shopping cart through a supermarket. I thought I was more than that, as a European citizen, and mostly: I thought Internet allowed me to do a little bit more than just pushing a virtual shopping cart.

In a consumer relationship, the one winning is the one selling the produt. If the people affected here are nothing but consumers, then citizens are not the ones winning.

The sad thing about it is that in this fight, I take the position of the public interest. I just wonder: what is the point of building a European network, even a European wifi7 if this project isn't about... the people it concerns the most? In this world view, how is this network useful, apart for enriching shareholders? How is it useful to us?

The kind of Europe I want to build

I am not passionately a European. The EU as it is today was build on foundations that aren't even the ones I want. I have been involved in enough European campaigns with La Quadrature to understand how these governing bodies work at that level. I know there is very little leeway. I know there is a lot of lobbying. I know that the European project was a matter of free trade and commerce first, not of human rights.

But I know what I would want to make of Europe. Look, we just celebrated the anniversary of Erasmus. The project behind Erasmus is to build a more unified Europe through discussion, through exchanging knowledge, through young and open minds. Now that, that seems essential to me. Remember, the European Union happened right after the war. It was carried by France and Germany, determined to do all it takes to stop fighting against one another. Strong commercial ties, but also cultural ties, because, well, if you understand your neighbour, you're less likely to want to hit them. Making students travel, letting them connect with other students, allowing them to exchange ideas, having them come back home with what they learned and ready to share their experience: those things aim for the kind of society I want.

In the same way, meshing Europe through local operators is one of the smartest answers to the challenge of unification. Local operators will know how to efficiently solve local problems. They will give citizens access to the tool that connects them to public space - the Internet. They will help unifying territories through connectivity in a sensible, intelligent way. This is counter-intuitive for technocrats. A technocrat thinks the best way to unify territories is through a nice homogeneous market with one single European mega-operator present everywhere and providing the same standard offer.

But territories resist thist plan. Geographers have known this for... a long time. In my field, Information and Communication Sciences, we know that territories are also build through media, through representations, through a highly complex interaction between very local and national levels. Local papers, for instance, are quite paradoxically powerful vectors for national cohesion. This is because they treat very local things as well as big national and international subjects, and thus integrate a local territory (region, city) in a larger whole (country). A national newspaper doesn't build this, or not as efficiently. Today, this integration on a large scale through a local territory happens more and more online, through social media for instance - which is exactly what I'm writing my dissertation on.

Telecoms don't escape these dynamics. They form the very specific infrastructure that allows people to build these complex links between self expression, representations of territory, national sentiment. Every day, when people go on Instagram and post a picture of what they see from their window, it connects them to their territory - that's the hypothesis I'm checking at the moment. And that is made possible because their neighbourhood has good 3G/4G coverage. It's easier to do this in Paris than in the middle of nowhere in the Corrèze. In other words: it's technically easier to build a link with your territory in Paris than in the Corrèze.

To make this possible in the middle of the Corrèze, to allow those landscapes to participate, to be a part of the colourful patchwork of ordinary images shared in #europe, to say "This is what Europe looks like over here", to make this kind of shared representation happen, it's way more efficient to get a local operator who knows the topology, the people, the problems specific to this or that small village, and who will know how to solve it specifically without wondering about cost-effectiveness. Way more efficient than to just pick something out of the prefabricated grid made up by MegaTelecom in an office in Berlin.

What's in stock is the second scenario. That won't create a European network. It will link Rome, Berlin and Paris, and do so very well. Linking Triffouillis-Sur-Glotte to Europe is not profitable. It will never draw enough customers. It's a shame, that was the core of it.

The world I want is not in the Commission and the Parliament's pipeline. They'd rather play with toy cars.