Flickr Creative Commons | Sébastien Bertrand

By Kevin J. O’Brien | New York Times | November 7, 2010

BERLIN — The global debate over how access to the Internet should be determined and paid for has attracted free speech advocates, telephone network operators and big online businesses like Google and Facebook.

This week, arguments over so-called network neutrality move to Brussels, where the European Commission and Parliament are holding a daylong meeting that is expected to draw speakers from industry, government and academia.

In the United States, the Federal Trade Commission attempted this year to bar operators — telecommunications and cable companies that offer connections to the Internet — from selectively managing the data flowing over their networks to assure that all customers got adequate service.

The commission tried to prohibit their extracting payment from big traffic generators like Google, but the proposal is bogged down in legal challenges. In Europe, the debate is not as far along, but the outcome is equally clouded.

Important signals about the Continent’s approach may come Thursday from Neelie Kroes, the European commissioner for telecommunications, who is scheduled to speak at the meeting and must report to the Parliament on the status of net neutrality by the end of the year.

In the absence of new regulation, Europe appears to be on track to give mobile network operators a relatively free hand in managing the data flowing over their networks. That could include the imposition of additional charges on rivals, like the voice-over-Internet service Skype.

Ms. Kroes, in public statements this year, has warned operators not to bar rival services from their mobile networks but has not indicated that she intends to push for tighter regulation that would limit the way operators can manage their data traffic.

Jean-Jacques Sahel, the European director of regulatory affairs at Skype, said Ms. Kroes needed to make sure that the 27 E.U. national regulators — who must establish rules by May 1 defining “reasonable” traffic management practices — take an aggressive approach to ensure that operators do not discriminate against rivals.

In most European markets, Mr. Sahel said, operators are still charging an extra fee, usually €10 to €15 a month, or $14 to $21, for customers wishing to use voice-over-Internet services. “This is a form of economic discrimination,” Mr. Sahel said. “The question is: Where will this stop?”

Ms. Kroes declined to comment through a spokesman, Jonathan Todd.

Network operators say that charging mobile consumers for rival services like Skype is widely accepted and that there has been no evidence of widespread censorship or discrimination that would warrant more regulation.

A Sept. 30 report by the Body of European Regulators for Electronic Communications, the European Union’s telecommunications advisory group, seemed to confirm the industry position, concluding that there was no new need for regulation at this point.

The group, which is made up of the bloc’s national telecommunications regulators, said operators in more than a dozen countries — Austria, Croatia, Germany, Italy, the Netherlands, Portugal, Romania, Switzerland, France, Greece, Hungary, Lithuania, Poland and Britain — had either blocked or throttled services like Skype or file-sharing Web sites. In general, using Skype allows callers to avoid paying the operators for local and long-distance calling; file-sharing sites put steep demands on mobile networks.

But most blocking stopped, the report said, after being reported to local media or regulators.

“To date, the survey carried out by Berec shows that incidents remain few and most of them have been solved voluntarily,” the regulators concluded. “These findings imply that there is currently little reason to undertake any new regulatory measures.”

Pierre Louette, the secretary general for the French carriers division of France Télécom, said extra charges to mobile users wishing to use voice-over-Internet services like Skype were accepted by regulators.

“These charges are considered standard industry practice,” Mr. Louette said during an interview. “We basically have to have the ability to generate revenue from our networks or we won’t be able to create the networks of the future.”

Another issue could present access issues, the regulators warned in their report — the shift away from flat-rate broadband packages to tiered service plans that tie greater speed and access to higher monthly fees. That transition is already under way.

In Spain this year, Vodafone has been testing a series of tiered pricing packages. Richard Feasey, the regulatory policy director at Vodafone, said consumers had reacted positively.

“From what we have seen in the blogs, our customers in Spain appear to be totally comfortable with paying more for greater levels of service,” Mr. Feasey said, comparing graduated Internet service with an airline’s economy, business and first-class ticket prices.

With the debate in flux on both sides of the Atlantic, U.S. operators are weighing in in Europe.

Mick Corkerry, the European executive director for AT&T, is scheduled to speak at the Brussels hearing Thursday. AT&T is a sponsor of a Brussels policy group called the Center for European Policy Studies, which opposes new net neutrality rules on operators.

Andrea Renda, the center’s head of regulatory affairs and a professor of antitrust law at LUISS Guido Carli University in Rome, said more network management regulations would “open a Pandora’s Box of new rules that would inevitably spread to search, apps and cloud computing.”

In the absence of new rules from Brussels, individual European countries will define their own versions of “reasonable” network traffic management, in most cases leaving great discretion to network operators, said Chris Marsden, a senior lecturer on Internet law at the University of Essex in Britain.

So far, only the French regulator, Arcep, has released a set of 10 principles it believes should guide operators’ behavior. In general, it recommended that Internet users be guaranteed the right to send and receive information of their choice and to use the applications and services they want, as long as they do not harm the network. Operators could suppress damaging Internet behavior, Arcep said, as long as the actions taken adhered to principles of relevance, proportionality, nondiscrimination, efficiency and transparency.

“But even Arcep is not proposing to go a step further and set deadlines for compliance and penalties,” Mr. Marsden said.

Even the French approach raises the potential for selective, arbitrary traffic management by network operators, said Jan Philipp Albrecht, a member of the European Parliament from Hanover, Germany, who will also be speaking at the event Thursday.

“The danger is there, because there are no rules on how the priorities should be set from the providers,” he said.

The outcome of the debate also has ramifications for Internet businesses like Google and Facebook, whose popular video-streaming services are generating much of the increased data load being handled by European mobile operators. In the United States, online businesses like Google sought to prohibit operators from charging online businesses to carry its services.

On Sept. 9 in Paris, Google’s chief executive, Eric E. Schmidt, met privately with a group of about a dozen mid- and top-level executives from several European mobile operators, who pressed him on whether Google was ready to help pay for the traffic it was creating.

“He was extremely complimentary to the operators who were there, but basically he ducked the question,” said one executive who attended the event. “The message seemed to be: you build the networks and we’ll make the profit.”

Flickr Creative Commons | Steakpinball

Yahoo! welcomes the decision last week by the Court of Appeal in Belgium, which highlights the importance of local law enforcement authorities following established international protocols when conducting their investigations.

In March 2009, a Belgian Criminal Court entered judgment in a criminal case against Yahoo! Inc. for the failure to disclose user data to Belgian law enforcement authorities. Yahoo! does not have a local subsidiary or a website in Belgium.  More importantly, the Belgian authorities did not follow the recognised legal process when it sought to obtain the user data from Yahoo! Inc., located in the U.S..  An official diplomatic channel exists between the U.S. and Belgium to facilitate appropriate information exchange (set up under the Mutual Legal Assistance Treaty), but this route was not taken by the Belgian authorities despite our encouragement to do so.

On 30 June 2010, the Belgian Court of Appeal overturned the March 2009 judgment. The Court of Appeal found there was insufficient jurisdiction to bring Yahoo! Inc.’s actions under Belgian telecommunications laws, and Yahoo! Inc. was acquitted of all charges and fines against it.

This judgment is a win for both the privacy of our users and also for common sense in international law enforcement:  the global nature of the internet does not subject companies offering services online – and their customers’ data – to the jurisdiction of every country globally.  We hope this judgment can send a signal to law enforcement authorities to use established legal process in their investigations; following such procedures is the best way to ensure that information gathering for law enforcement is conducted effectively and efficiently, whilst safeguarding data privacy and freedom of expression over the Internet.

By Jen Swallow | Legal Director, Product Compliance EMEA | Albert Yung | Legal Intern | Yahoo! UK

Flickr Creative Commons | Sébastien Bertrand

By David Kravets | Wired Magazine | June 11, 2010

A hard drive with perhaps several hundred gigabytes of internet surfers’ private data resides under lock and key in a Portland, Oregon, federal courthouse.

Regulators and private lawyers across Europe and the United States are demanding, and in some cases obtaining, access to data that Google sniffed for the past three years from unsecured Wi-Fi hot spots across the globe.

The requests are coming in some of the eight proposed class actions targeting Google that have cropped up across the United States, as well as from various governments investigating whether Google violated their laws.

The demands for data raise a paradox of sorts: How many eyeballs, in the name of privacy, will eventually see the data that likely includes snippets of e-mail, web surfing, documents and other private data?

“It will be relevant evidence in our lawsuit. We will ask for production of that data. Lawyers representing plaintiffs in the case will review the data,” said Patrick Keyes, a top lawyer in one of the proposed class actions lodged in the District of Columbia. “This would be in the context of presenting the legal interests of those who have had their data intercepted, and would typically be produced under a protective order.”

Google has already said it would forward to German, French and Spanish authorities the portion of the data intercepted in those countries.

No government agency in the United States has yet demanded a copy of the intercepted data, but several are investigating Google.

Missouri Attorney General Chris Koster said he wanted to “scrutinize this situation” while Connecticut Attorney General Richard Blumenthal has demanded “detailed records on any information taken from networks” from his state.

Federal Trade Commission Chairman Jon Leibowitz told Congress, “We’re going to take a very, very close look at this.”

Rep. Joe Barton (R-Texas) said Friday that Google’s actions “warrants a hearing, at minimum.”

Ironically, it appears that protecting privacy and administering justice might just involve violating privacy.

“That’s true. All of this raises a lot of First Amendment questions,” said Jeffrey Chester, director of the Center for Digital Democracy. “It is problematic. Some of these lawyers see a quick buck without thinking of the consequences.”

U.S. District Judge Michael Mosman in Oregon has locked away the data (.pdf) as that class action proceeds. ISec Partners, a San Francisco security consulting firm, has made encrypted copies of the drives at Google’s request and destroyed the originals.

“The encryption keys for these drives are possessed by only myself and one other person. and the hard drives are securely stored in a safe controlled by Google’s physical security team,” (.pdf) Alexander Stamos, one of iSec’s founding partners, told the Oregon judge in a court filing before the data was forwarded to the Portland courthouse.

But Aaron Zigler, a lawyer in the Illinois class action, said, “I don’t want to see the actual data that has been intercepted.”

Class members of the lawsuits can be determined without actually reading the contents of the payload data packets, he said. “There is enough data to figure out who everyone is: date, time and location, and unique MAC addresses of the Wi-Fi network they intercepted,” he said.

Pablo Chavez, director of public policy for Google, said in a letter to Congress released Friday that Google is “aware of only two instances when any Google engineer even viewed the payload data.”

“The first instance involved the individual engineer who designed the software,”  (.pdf) he wrote. “The second instance was when we became aware that payload data may have been collected from unencrypted Wi-Fi networks, and a single security engineer tested the data to verify that this was the case.”

Google has repeatedly said it is working with the relevant government investigators, and is demanding that all the litigation be consolidated in California, where it’s headquartered.

The Mountain View internet giant maintains the collection of data while taking photos for its Street View program was inadvertent –- the result of a programming error with code written for an early experimental project that wound up in the Street View code (.pdf), an explanation some of the lawyers suing Google have disputed.

Google said it didn’t realize it was sniffing packets of data on unsecured Wi-Fi networks in dozens of countries for the last three years, until German privacy authorities questioned what data Google’s Street View cameras were collecting. Street View is part of Google Maps and Google Earth, and provides panoramic pictures of streets and their surroundings across the globe.

And Google said no U.S. wiretapping laws were breached because the Wi-Fi signals were “readily accessible to the general public” (.pdf).

At least insofar as the proposed class actions were concerned, Jennifer Granick, a civil liberties attorney with the Electronic Frontier Foundation, suggested having a judge or a so-called “special master” sift through the data to determine whose data Google obtained. That should only happen if Google is found to have done something unlawful, she said.

“This raises my eyebrows,” she said. “I don’t think we need to know what any of this data is yet, because there’s nothing to suggest Google did this intentionally.”

Flickr Creative Commons | Tim Yang

By Clint Boulton | eWeek.com | June 10, 2010

Google Chief Legal Officer David Drummond wants the U.S. and European governments to nudge China to cease its censorship of the Internet because it restricts free trade. The Internet sector is vital to Google’s hopes for international expansion. China boasts more than 400 million Web users and Baidu is the leading search engine in mainland China. Censorship in the form of the Great Firewall of China has been a long-standing complaint about China from Google, Yahoo, Microsoft and other companies looking to extend their tendrils in Asia.

Google wants the U.S. and European governments to nudge China to cease its censorship of the Internet, the search engine’s lead lawyer told the Associated Press in Brussels.

David Drummond, chief legal officer and senior vice president of corporate development at Google, June 9 said that China’s censorship restricts free trade for the Web, where Google is hungry to expand in China.

Western governments should defend the free trade for the Internet with the same kind of rules that they use to complain of China’s sale of products below cost, Drummond added.

Censorship in the form of the Great Firewall of China has been a long-standing complaint about China from Google, Yahoo, Microsoft and other companies looking to extend their tendrils in Asia while enjoying the same fair trade rules they enjoy in the U.S.

The sticky issue reared its head again in January when Google said it discovered a cyber attack originating from China in which users Gmail accounts were accessed.

Threatening to cease doing business in China entirely, Google in March shuttled its Chinese search operations to the region of Hong Kong, which doesn’t follow the same censorship restrictions as mainland China.

Shortly after this move, Google co-founder Sergey Brin told The Guardian he hoped the U.S. would make China’s Web censorship a “high priority.”

While the U.S. publicly supported Google’s position, little has happened on this front.

In country, U.S. President Barack Obama and his administration are dealing with issues such as the Deepwater Horizon oil rig disaster, in which thousands of barrels of crude oil are blotting the Gulf of Mexico each day.

Drummond called the hack attack the “final straw” and reinforced the company’s stance that China’s censorship restricts free trade.

“Censorship, in addition to being a human rights problem, is a trade barrier,” said Drummond, according to the AP. “If you look at what China does — the censorship, of course, is for political purposes but it is also used as a way of keeping multinational companies disadvantaged in the market.”

“It should be obvious that the Internet sector is very important to the west and so we should be working on seeing that that kind of trade is protected.”

Holding sway in China is crucial to Google’s hopes for international expansion. China boasts more than 400 million Web users and Baidu is the leading search engine in mainland China. Being marginalized at Google.hk won’t do anything to help Google challenge the incumbent there.

The U.S. could make a case versus China with the World Trade Organization, though Drummond wouldn’t go so far as to suggest that.

He did say he received some support in the U.S., French and German governments and with the European Union executive for pressing Google’s case against Chinese Web censorship.

Flickr Creative Commons | Simone Ramella

The Economist | October 1, 2009 | Rome

On October 3rd a demonstration will be held in Rome to defend media freedom—not in a remote dictatorship, but in Italy itself. Journalists who have called the protest have good reason to worry. In Freedom House’s 2009 survey of media independence, Italy was downgraded to “partly free” and placed 73rd in a list of 195 countries (only just above Bulgaria). In this respect, at least, Silvio Berlusconi’s Italy is distancing itself from western Europe and becoming more like weaker democracies farther east.

The Rome demonstration was called to protest over writs issued by the prime minister against two left-leaning newspapers. Mr Berlusconi is demanding damages of €1m ($1.5m) from La Repubblica for insisting on answers to ten questions about his private life. And he wants €2m from L’Unita (plus €200,000 apiece from five named journalists) for its articles, including one saying he abused his control of the media. L’Unita might close if it loses.

Mr Berlusconi’s writs seem to be part of a drive to flush out the few remaining rebel enclaves in the Italian media. His reply to talk of a conflict between his media interests and his political role has long been that he is still subject to plenty of criticism. Yes, he controls three of Italy’s seven main terrestrial television channels; another three, operated by the state-owned RAI, answer to a parliament dominated by his supporters; and he or his family own a leading daily, Il Giornale, plus a weekly news magazine and the country’s biggest publishing house. But of Italy’s main dailies, La Repubblica is firmly hostile, whereas Corriere della Sera and La Stampa are intermittently critical. The third RAI channel is run by the centre-left, and RAI’s radio network often provided unfavourable coverage. Even the evening news bulletin of Mr Berlusconi’s flagship channel, Canale 5, has run stories that embarrass him.

Since Mr Berlusconi returned to power last year, however, much has changed. Enrico Mentana, the news anchor long seen as a guarantor of Canale 5’s independence, walked out in April 2008, saying that he no longer felt “at home in a group that seems like an electoral [campaign] committee”. Journalists close to Mr Berlusconi have been appointed to edit RAI’s radio news and the bulletins of its first channel. And RAI has withdrawn legal support from its only real investigative programme.

Notwithstanding such efforts to appease the government, Mr Berlusconi’s allies have just launched an unprecedented assault on RAI, after one of its current-affairs programmes gave airtime to a woman who claims to have been paid to spend the night with the prime minister. Up to now, RAI has been seen as answerable only to a parliamentary committee. But on September 26th the government demanded that its most senior executives attend a meeting to “verify the impartiality” of the programme. A day later, Il Giornale and another newspaper close to the prime minister appealed to readers to stop paying the licence fees on which RAI depends for almost half its income.

Not since Mussolini’s time has an Italian government’s interference with the media been more blatant or alarming. Journalists, and other Italians, have every reason to protest.