Internet Service Providers : under pressure?
04.06.2009, 12:06 Internet Service Providers are under
pressure to cooperate with goverments in regulating the use of Internet in most
of countries, Maia Kozina, assistant to director at ComPlus Consulting
writes.
After long debates, regulation seems to have taken over freedom, especially
in the European Union, with 2009 long strain of laws issued by several
governements in order to ban or restrict certain activities from the
cyberspace.
Though these laws aim at different sectors, from illegal and considered by
most of the public as amoral activities (cyberpedophilia, hard drugs sales
on the internet,…) to legal but regulated ones (pharmaceuticals, gambling,
cigarettes,…), they all have one common factor : they hold responsible, in
various extents, the ISP for the content it allows to access and the
transactions it supports.
Let’s take the sample of the Estonian Gambling Act, entered in force on
January 1st, 2009 : in a set of dispositions to enter in force on January 1st,
2010, it states that Internet Service Provider is obliged to impede access
to remote gambling if it is aware that such remote gambling is illegal, that is
if the site hosting the gambling activities does not benefit from an Estonian
operating License.
Failure to do so will be considered as a facilitation of participation to
unauthorized remote gambling, each occurrence being subject to a fine of up to
40 000 EEK.
By adopting such a legislation, Estonia clearly transfers the responsibility
of police tasks to the ISP.
In a country like France, which, with England and its habeas corpus, shares a
reputation for preserving individuals freedom, two laws, HADOPI (voted) and
LOOPSI (which has been accepted by the Ministers Counsel and will be submitted
to parlamentary vote in the next weeks) are aimed at , for HADOPI, giving to the
ISP the responsibility and the powers to shut down the Internet user’s access in
case of alleged piracy, and for LOOPSI to make mandatory for the ISP to block
access to any website listed on a confidential blacklist which will be
communicated by the Minister of Interior.
Interesting fact : these national laws are in contradiction with European
Commission will to promote freedom of access to internet as a fundamental
right of the Citizen, equal to freedom of speech.
European Commission wants freedom of access, and the Council of Telecom
Ministers opposes it. Though debate is still open (next round will be on June
12th in Brussels), it tells a lot about the will of governements to control
activities on the internet from the moment they involve or target their
citizens.
As no governement has the means to enforce by itself policies aimed at
restricting content offer in the cyberspace, which is, by nature, transnational,
the only way for a state to act is to make sure actors of this market will abide
to policies aimed at restricting access from their territory to certain
sites.
The most impressive sample so far of such policies has been with China, whose
deal with actors such as Google or Yahoo exchanging authorization to operate in
China against restrictions on the search results and communication of personal
data of internauts to the governement has set a new step in the control of the
once unregulated space by authorities.
The ISPs are now facing real problems in their day to day job.
At first, a potential problem for their business itself : it is widely
admitted that the popularity of Internet is directly linked to the sense of
privacy and freedom the individuals experiment using it, so what will happen
when they realize they do not experiment this anymore because « Big Brother » is
watching them ?
Second, how will they enforce these regulations ? Right now, ISPs are doing
nothing but providing a motorway allowing users to reach content and vice
versa.
Now, they are basically asked to monitor the traffic and install red
lights at their own expenses.
For an example, everytime an Estonian user wants to gamble over the web
(which will be legal starting January 1st, 2010), the ISP will need to check
that the site operates under License of the Estonian governement.
This will
in itself induce use of technical means, and therefore additional costs. But,
worse, by applying strictly the terms of the Gambling Act, everytime an Estonian
user will try to access a website, the ISP will need to check if the site is or
not a gambling site and then if it is a licensed site or not.
This is far more complex, and therefore far more expensive.
Needless to
say, due to the current tendancy, such obligations of monitoring should be
extended in the future to any unlawful or restricted activity (excises related
products such as tobacco or alcohol, music video downloading, porn…).
As a direct consequence of the combination of these two problems, there is a
risk that « rogue » ISPs will take over significant market share from « fair
players », as not complying with their obligation to monitor and restrict, such
« rogue » players would guarantee to their users a wider freedom of use than
their competitors, which should lead to a growth in the number of their users,
and to a lower cost of operations, due to the lack of implementation of
monitoring solutions.
Whatever happens, the additional cost of operations generated by the
recent laws will with no doubt harm financially the Internet Service Providers
and might very well lead to the sudden death of the
weakers.