New legislation in the Netherlands makes it the first country in Europe to establish a legal framework supporting net neutrality. In addition to the net neutrality provisions, the law contains language that restricts when ISPs can wiretap their users, and limits the circumstances under which ISPs can cut off a subscriber's Internet access altogether.
The anti-wiretapping section of the new law specifies that ISPs may not use technologies like deep packet inspection (DPI), except under limited circumstances, or with explicit consent from the ISP’s customer, or to comply with a court order or other legislative provisions. One Dutch ISP, KPN, came under fire last year for using DPI to determine whether its subscribers were using VoIP on mobile devices.
The new law sets out an exhaustive list of six circumstances in which an ISP can disconnect or suspend the Internet access of subscribers. These include: termination at the request of the subscriber, non-payment by a subscriber, in cases of deception, at the expiry of a fixed contract, force majeure, or if the ISP is required to terminate by law or a court order. In addition, the network neutrality provisions also permit blocking of an Internet connection where necessary for the integrity and security of a network.
The provisions are the Dutch government’s implementation of the 2009 EU Telecoms Package revision framework. Article 1(3a) of the Framework Directive states that EU Member States may only adopt measures interfering with citizens’ ability to access and use the Internet in limited circumstances. In particular measures may only be imposed if they are “appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, including effective judicial protection and due process.”
As Dutch digital rights group Bits of Freedom notes, the new provisions are needed because “[c]urrently, Internet providers on the basis of their terms and conditions may terminate or suspend the Internet connection for various reasons.” This law ensures that ISPs cannot disconnect users for nebulous terms of service violations. This gives Internet users some protection against ISPs adopting voluntary or semi-voluntary measures, such as policies to disconnect Internet users on three allegations of copyright infringement.
This is important as voluntary three strikes policies become an increasingly real danger. In the United States, for example, ISPs and major media trade groups have developed a voluntary "graduated response" program — the so-called "six strikes" deal — that is set to go into effect this July. EFF is now calling on Internet users to pressure the participating ISPs for a public commitment not to cut users off under the new program.
The Dutch law comes after vigorous campaigning by civil society groups including influential digital rights group, Bits of Freedom. Ot van Daalen, the Director of that organization, hopes it will spark similar legislation elsewhere. "Bits of Freedom campaigned hard for these provisions and our work paid off. The law sets an example for other countries, and we call on the rest of Europe to follow."
