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EDRI-gram
biweekly newsletter about digital civil rights in Europe
Number 5.8, 25 April 2007
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Contents
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1. IPRED2 voted in first reading by the European Parliament
2. French Government Decree on data retention - another Big Brother act
3. Data retention and increased surveillance in Germany
4. Copyright clearing for EU digital libraries project
5. E-voting in France - after the first round of presidential elections
6. New anti-racism documents on the European agenda
7. Free file sharing in the copyright law supported by a Norwegian Party
8. Privacy bodies investigate Google's data protection standards
9. Complaints on lack of access to European Commission documents
10. ENDitorial: The Transparent Drug Addict - Choosing Therapy Over Privacy?
11. Recommended Reading
12. Agenda
13. About
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1. IPRED2 voted in first reading by the European Parliament
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The Intellectual Property Rights Enforcement Directive (IPRED2), with the
changes made by a report produced by Nicola Zingaretti (PES), was voted by
the European Parliament in its first reading today with a vote a 374 in
favour, 278 against and 17 abstentions.
Unfortunately, the suggestions from an alliance of libraries, consumers and
innovators, including the 8 000 signatories of the petition at copycrime.eu
were not considered by the Parliament, although the vote was much tighter
than anticipated.
The scope of the directive still includes trade names, database and design
rights, along with the copyright and trademarks. Liabilities for software
and service providers are possible by criminalising also the inciting of an
intellectual property right infringement.
Jonas Maebe, Foundation for a Free Information Infrastructure (FFII) analyst
commented: "Today, 'inciting' is only criminal in some member states, and in
exceptional cases such as hate speech. Elevating IPRs to the same level is a
scary development. The inciting clause is also reminiscent of the US 'Induce
Act', which threatened to make MP3 players such as the iPod illegal"
The fight now moves to the Council of the European Union for its first
reading, and then to the European Parliament for a second reading. Several
states have started to mount resistance to IPRED2 in the last weeks, with
the UK and Holland leading the charge.
European Parliament Criminalises Businesses, Consumers, Innovators
(25.04.2007)
http://press.ffii.org/Press_releases/European_Parliament_Criminalises_Busine...
IPRED2 Slips Through, Fight to Continue (25.04.2007)
http://www.eff.org/deeplinks/archives/005219.php
Intellectual property: pirates and counterfeiters to feel the full weight of
criminal law (25.04.2007)
http://www.europarl.europa.eu/news/expert/infopress_page/057-5723-113-04-17-...
Petition against IPRED2
http://www.copycrime.eu/petition
EDRI-gram : IPRED2 adopted by the EP Legal Affairs committee (28.02.2007)
http://www.edri.org/edrigram/number5.6/ipred2
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2. French Government Decree on data retention - another Big Brother act
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The French Government, during this election period, is preparing a decree
for the application of the law on the confidence in the numerical economy
(LCEN) of 21 June 2004, which requires webmasters, hosting companies,
fixed and mobile telephony operators and Internet service providers to
retain all information and on Internet users and telephone subscribers and
to deliver it to the police or the State at a simple request.
The present text requires the data retention for a year, and according to
the digital rights associations, such as EDRI-member IRIS, this goes even
further up to retaining the passwords supplied when subscribing to a
telephone service or an Internet account or payment details such as amount,
date or type.
It apparently imposes the identification of anyone in France who has made
any modification in a blog, a chat room or on the web and the systematic
recording of anything put, modified or erased online which is practically
impossible from the technical as well as economical point of view.
Further more, chapter 2 of the draft decree establishes that the data
retained by the ISPs and hosting companies and obtained by the police can be
kept by the latter for a period of three years in the automatic processing
systems provided by the Ministry of Domestic Affairs and the Ministry of
Defence. And this comes at a time when the police have already been given
wider prerogatives while no data protection measures are provided for the
data retained.
Concerns are also expressed in relation to the vagueness of the text. "We
would like some clarifications on the nature of the data that operators have
to retain, considering their risk of penal responsibility in case of a
legal decision regarding the violation of privacy" said Dahlia Kownator,
general delegate of AFA-France (French Association of ISPs), who also
believes that a harmonization of the regulatory texts should be achieved at
the national and European level.
The costs involved by this process would also be extremely high. During a
meeting organised by the Ministries of Domestic Affairs and Finance on 8
March 2007, professionals have estimated their costs in human resources and
storing capacity could reach up to several millions euro per year.
The sanction for non-compliance or passivity would also be very high, the
French Internet ISPs and websites facing fines of up to 375 000 euros and
their managers one-year imprisonment and up to a 75 000 euros fine, besides
the closing down of their business and the interdiction to practice any
commercial activity.
According to IRIS, besides these obvious negative results, this action would
lead to discouraging the French Internet providers to the advantage of the
international players.
Retention of identification and connection data: more and more and over
longer time periods - IRIS press release (only in French, 20.04.2007)
http://www.iris.sgdg.org/info-debat/comm-decretlcen0407.html
Debate on the information data retention (only in French, 20.04.07)
http://www.lemonde.fr/web/article/0,1-0@2-651865,36-899089@51-886229,0.html
Does the State want to kill the Internet in France (only in French,
20.04.2007)
http://www.lemonde.fr/web/article/0,1-0@2-3232,36-899116@51-886229,0.html
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3. Data retention and increased surveillance in Germany
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The German government has approved the draft legislation that implements the
data retention directive, but the political opposition and the growing
anti-surveillance movement shows an important resistance to the new plans of
the federal Minister for the interior, Wolfgang Schduble, who wants an ever
increased surveillance.
The draft bill adopted by the German Government on 18 April 2007, was called
by the Minister of Justice, Brigitte Zypries, "reasonable and
constitutional." But the adopted draft expands what was initially
proposed by Zypres, making traffic data accessible not only for criminal
prosecution purposes, but also in order to "prevent considerable dangers"
and "fulfil the legal duties" of all security police. Zypries also stated
"the data retained could be used to prevent crime... if the police laws of
the German states allow for this."
The e-mail can be used anonymously, but the anonymization services will also
be obliged to retain data. Providers of e-mail services will basically
have to keep records of the following: the user's IP address for each e-mail
sent and for each access to the inbox as well as the sender's network ID for
every e-mail received.
At the same time, the Federal Interior Minister, Wolfgang Schduble,
has presented a new "list of horror" that includes doing "preventive"
dragnet investigations (i.e. data mining in private databases without
suspicion), storing fingerprints and other biometric data of all Germans who
have passport data in a networked database, secretly hacking into citizens'
computers or performing "preventive" phone interception.
But more voices rise against the new plans. The journalists' and
publishers' organizations saw the secrecy of their sources under attack by
the data retention bill, and most mass media have more or less openly
positioned themselves against the plans.
Leading Social Democrats are openly moving away from Schduble, and some have
even compared his attitude to that of Guantanamo. Even a few prominent
conservatives have tried to slow him down and the police union has openly
questioned the necessity of these measures.
Also the recent demonstration "Freiheit statt Angst" (Freedom instead of
Fear) against growing surveillance, organized by the Working Group against
Data Retention and supported by EDRi-members CCC, FIFF, FITUG, FOEBUD, NNM,
and others, has gathered more than 2000 people in Frankfurt on 14 April 2007
in the biggest demonstration for privacy since the 1980s. Supporters have
been very wide-ranging, from radical anti-fascist groups to the opposition
parties and the federation of women emergency call centres. The ISP
associations did not officially support this, but a lot of them helped with
logistics behind the scenes. Many of the ISP workers from Frankfurt also
took part in the demonstration.
The working group against data retention has also gathered more than 12 000
supporters for a constitutional court challenge against data retention since
November 2006. It will be submitted on the day the bill is enacted. This
will be the largest constitutional court case in Germany ever.
The adoption of the data retention bill a few days after the demonstration,
as well as Schduble's plans, combined with an unclear statement by him on
the presumption of innocence, have led to an outcry in the last few days.
The said-to-be-non-political German blogosphere discussed these developments
at a large gathering in Berlin two weeks ago and, as a follow-up, has issued
a call for creative resistance. Above all, blog posts that contain "Stasi
2.0" (a reference to East German secret police) with a picture of minister
Schduble are spreading quickly at the moment.
German government approves retention of data (19.04.2007)
http://www.heise.de/english/newsticker/news/88499
Surveillance plans and the growing privacy movement in Germany (20.04.2007)
http://bendrath.blogspot.com/2007/04/surveillance-plans-and-growing-privacy....
Demonstration "Freiheit statt Angst" (Freedom instead of Fear) (only in
German, 14.04.2007)
http://www.freiheitstattangst.de/
Stasi 2.0 - Germany moving towards surveillance state
http://www.technorati.com/search/%22stasi+2.0%22
(Thanks to Ralf Bendrath - EDRI member Netzwerk Neue Medien)
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4. Copyright clearing for EU digital libraries project
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On 18 April 2007, a copyright handling model for digitalised works was
agreed by EU High Level Expert Group on Digital Libraries including major
stakeholders such as the Federation of European Publishers, the British
Library, the German national library and Google.
The High Level Expert Group, founded in 2006 by Viviane Reding, the
Commissioner for Information Society and Media, advises the Commission on
issues regarding digitisation, online accessibility and digital preservation
of cultural material. This action is part of the European Digital Library
initiative adopted by the European Commission in June 2005 in order to
preserve European cultural and scientific heritage making them available
online in closed networks.
In February 2007, the Commission adopted a Communication on "Scientific
Information in the Digital Age: Access, Dissemination and Preservation" to
examine and support new ways of promoting better access to scientific
information online and to preserve research results digitally for future
generations.
"Protection of intellectual property is important to stimulate creativity
and innovation in the knowledge-based economy. Solving copyright issues in
an online-environment is therefore crucial if we are to make the vision of a
European Digital Library a reality", said Reding.
The model recommended by the group covers for the time being orphan works
(works with no identified right holders) and out-of-print works (no longer
for sale) but leaves room for further coverage of commercial publications.
As regards the orphan works, the group suggested non-legislative solutions
like databases dedicated to information on orphan works, embedding better
rightsholder data in digital material, and negotiating better contracts
between stakeholders. It has also reviewed several legislative proposals
to determining when the search for the owner of an orphaned work is
diligent.
Regarding the out-of-print works, the Group suggest a four-phase solution
that is based on a model licence (presented in an Annex to the report),
establishment of a database of such works, a joint clearance centre and a
procedure to clear rights.
According to this solution, the rights-holders can license their works to a
library, which further on digitalises them making them available to other
users such as museums, universities, other libraries or home PCs. The
licensed library will be responsible for collecting the money from the users
and for paying the right holder.
The exact level of payment did not make the object of the deal but according
to some sources a likely cost could be close to 1 euro per each use of a
work. However, the amount would depend on negotiations of the individual
licenses.
Report on Digital Preservation, Orphan Works and Out-of-Print Works,
Selected Implementation Issues (18.04.2007)
http://ec.europa.eu/information_society/newsroom/cf/document.cfm?action=display&doc_id=295
Copyright deal clears way for European Digital Library (19.04.2007)
http://euobserver.com/9/23894/?rk=1
EU Copyright Group Seeks Solutions to Digitisation Roadblocks (20.04.2007)
http://www.ip-watch.org/weblog/index.php?p=591&res=1280_ff&print=0
Europe's Digital Library experts set to focus on copyright today
(18.04.2007)
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/508&format=HTML&aged=0&language=EN&guiLanguage=en
i2010: Digital Libraries Initiative - Europe's Cultural and Scientific
Heritage at a Click of a Mouse
http://ec.europa.eu/information_society/activities/digital_libraries/index_e...
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5. E-voting in France - after the first round of presidential elections
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The first round of the presidential elections in France, where e-voting
systems have been used in 82 localities as a pilot test, showed many queues,
some equipement shutdowns and dropouts of some towns (Amiens, St Malo, Le
Perreux, Ifs). Some political parties have called the e-voting a
"catastrophe", demanding the withdrawal of electronic voting machines for
the second round of the presidential election .
However, the main two points of the e-voting criticism, as explained by
Pierre Muller from Ordinateurs-de-vote.org, are the loss of control by the
citizens with the risk of major untraceable fraud and the humiliation
for a great number of electors. The latter is explained by the fact that at
least 5-10% of the electors are not at ease with the electronic voting
system, according to some e-voting satisfaction polls. These citizens could
be publicly humiliated by their difficulties in voting or the number of the
citizens not coming to vote could actually grow .
On the verge of elections, the town halls of Voreppe, Ifs and Wissous have
publicly announced that the new i-Votronic voting equipment that they had
acquired has been replaced with "an older version", as the new model had not
yet received approval. The town hall of Issy-les-Moulineaux, having
previously bragged its voting would be 100% electronic, has had to do the
same thing, only tried to be discrete in this matter.
In some localities including Issy-les-Moulineaux the electors have asked for
a moratorium on the usage of the voting machines and have indicated they
would make appeals regarding the request of tenders and decisions of the
municipalities. A complaint was sent to the State Council by the opponants
to electronic voting of Issy-les-Moulineaux which has acknowledged the
receipt but announced the action would be not judged right away. According
to the claimants, the State Council should give its advice within 15 days.
According to Nicolas Barcet of Internet site betapolitique.fr, as well as
Laurent Pieuchot, municipal councillor in Issy-les-Moulineaux, the voting
computers of Issy do not comply with the requirements of the Ministry of
Domestic Affairs using more than two keys as agreed upon.
Amiens town hall also announced that it had to give up the electronic voting
system and that the presidential elections would take place in the
traditional manner. The declaration of the town hall was that: "Having in
view the reluctance expressed by many people against this new voting system,
Gilles de Robien (the Mayor) has decided that this will be done only
experimentally".
Opposing to the electronic voting system can be risky. Two citizens of
Courdimanche in Val-d'Oise, have been condemned to the payment of 800 euros
legal charges by the administrative court of Cergy-Pontoise that rejected
their action against the voting machines. Lucile Schmid, regional councillor
in Hauts de Seine, and Laurent Pieuchot, municipal councillor in Issy les
Moulineaux, were condemned by the High Court of Paris to stop the
distribution of their brochure "Ne laissons pas la place aux machine, votons
massivement" (Let's not give in to machines, let's all vote) which was
stating that there were security problems related to the voting equipment.
The two electors will make appeal.
The site Ordinateurs-de-vote.org has launched a petition for the
preservation of the paper voting which, by 25 April 2007, had already
gathered more than 80 000 signatures.
The site also draws the attention on the fact that electronic voting has
already shown opposition in some countries in Europe and even the USA. In
Belgium, the opposition went up to proposing a law for the interdiction of
electronic voting.
According to a study carried out by Paul Verlaine - Metz University, the
voting equipment also "create huge accessibility problems to the sight
impaired being a true discrimination source for them". The study also
estimates that, with these machines, 25% of the electors run the risk of
mistaken the candidate or of not finalising their vote.
Petition for the preservation of the paper voting (only in French)
http://www.ordinateurs-de-vote.org/petition/
Voting machines a 'catastrophe'--French parties(23.04.2007)
http://newsinfo.inquirer.net/breakingnews/infotech/view_article.php?article_...
First presidential election tour : the main point is somewhere else (only in
French, 22.04.2007)
http://www.ordinateurs-de-vote.org/Premier-tour-de-la-presidentielle.html
The town hall of Amiens steps back from the electronic voting (only in
French, 20.04.2007)
http://www.lemonde.fr/web/article/0,1-0@2-823448,36-899479@51-885010,0.html
Judicial pressures on voting machines (only in French, 21.04.2007)
http://www.lemonde.fr/web/article/0,1-0@2-823448,36-899409@51-885010,0.html
The voting machines of Issy-les-Moulineaux have been discretely replaced
(only in French, 18.04.2007)
http://www.lemonde.fr/web/article/0,1-0@2-823448,36-897086@51-885010,0.html
Voting machines: confusion governs (only in French, 20.04.2007)
http://www.lemonde.fr/web/article/reactions/0,1-0@2-823448,36-898211@51-8850...
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6. New anti-racism documents on the European agenda
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After six years of debates in trying to reach an agreement, the European
Council will adopt a Framework decision that makes incitement to racism and
xenophobia a crime in all the EU members states. At the same time, five MEPs
promoted a declaration that asks for an increased involvement of the ISPs in
the fight against hate webpages.
The text of the new Framework decision on Racism and Xenophobia has been
agreed by the Justice and Interior Ministers from EU, that have reached a
compromise, thus making the incitement to racism a crime that should be
punished by criminal penalties of 1-3 years of imprisonment. However the
member countries may "choose to punish only conduct which is either carried
out in a manner likely to disturb public order or which is threatening,
abusive or insulting."
The new agreed text does not include controversial terms such as
Holocaust or crimes under the Stalin regime and makes reference to the
"crimes of genocide, crimes against humanity and war crimes as defined in
the Statute of the International Criminal Court" or "crimes defined by the
Tribunal of N|remberg". However, the legislation in some member countries
(such as Austria, Belgium, France, Germany, Poland and Romania) already
targets the Holocaust denial.
At the same time, a written Declaration on Race Hate on the Internet was
submitted to the Parliament on 23 April 2007 by a group of five deputies
from the EPP, Socialist, Alde and GUE groups .
The declaration calls for all "Internet service providers to include
provisions on hate in their terms of service", but does not indicate if it
refers to hosting companies or Internet access providers. At the same time
the declaration does not address the delicate question on what terms should
an ISP decide if a content is considered racist under their national law,
an issue largely debated in other OSCE or UN meetings.
The declaration also calls on the EU Member States to sign and ratify the
Council of Europe Additional Protocol to the Convention on Cybercrime,
concerning the criminalisation of acts of a racist and xenophobic nature and
on the European Commission to enhance dedicated activities on hate through
its Safer Internet Plus Programme.
The five MEPs ask "to learn from international good practice in the USA",
despite the fact that most of the anti-Semitic webpages are hosted in the
United States and protected by the First Amendment to the Constitution.
EU agrees breakthrough hate-crime law (20.04.2007)
http://euobserver.com/9/23902/?rk=1
EU criminalises racial hatred (20.04.2007)
http://www.euractiv.com/en/justice/eu-criminalises-racial-hatred/article-163...
Providers are called on to do more against "hate pages" on the Web
(20.04.2007)
http://www.heise.de/english/newsticker/news/88577
Written Declaration on race hate on the Internet (23.04.2007)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+WDECL+P6-DCL-2007-0042+0+DOC+PDF+V0//EN&language=EN
EDRI-gram: Combating Racism on Internet (2.02.2006)
http://www.edri.org/edrigram/number4.2/internetracism
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7. Free file sharing in the copyright law supported by a Norwegian Party
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The Norwegian Liberal Party (Venstre) passed a resolution on 14 April 2007
to support changes in the copyright law including free file sharing, free
sampling and the banning of DRM systems.
The resolution proposed by the Young Liberals and supported by Trine Skei
Grande, Vice Chairwoman of the Liberal Party, is meant to adapt the
legislation to the modern technological developments.
"These are great opportunities, and the Liberal Party wants to use them. We
want to advocate collecting, use, improvement and spreading of all culture,
ideas and innovation for non-commercial use", said Jonas Stein Eilertsen,
cultural spokesperson for the Young Liberals.
Venstre believes the copyright law in force is outdated and a balance needs
to be created between the consumers' demands, access and openness to culture
and the artist's rights. The opinion is that copyright has been largely
misused by the copyright owners and distributors which led to stalling
innovation and artistic development.
One of the changes the resolution proposes is the free file sharing. As the
new technologies allow now a wide and global spread of culture at a minimum
cost new means must be found for the compensation of artists and copyright
owners so that file sharing might be free.
Free sampling is also proposed in order to give artists and producers the
possibility to rework old works thus simplifying the present situation
where this requires the approval of all copyright holders. The
anti-plagiarism laws are considered to be enough to protect the copyright
holders' rights.
Another proposed change is related to the life span of the commercial
copyright. Presently, the copyright life span in Norway is 70 years after
the original holder's death. The Liberal Party considers this period should
be shorter.
A significant change would refer to DRM systems, the Liberal Party
considering these should be banned in order to ensure the free use and
distribution of culture and information. With products using DRM that are
outside the Norwegian jurisdiction, there must be a clear specification of
the use of DRM.
"International law regulates most of these questions. I have yet to conclude
on everything regarding these complex problems, but I have faith in this as
a radical and modern solution that still ensures artists' rights to revenue
and attribution" stated Skei Grande.
Liberal Party Advocates Legal File Sharing (15.04.2007)
http://www.uv.no/arkiv/pressemeldinger/liberal-party-advocates-legal-file-sh...
Culture wants to be free! (16.04.2007)
http://www.uv.no/politics/translated-items/culture-wants-to-be-free
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8. Privacy bodies investigate Google's data protection standards
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Even though Google recently announced the reduction to 18 - 24 months of the
retention time for data related to users and their searches, its privacy
practices are discussed by the Article 29 Working Group and could be
investigated by the US Federal Trade Commission (FTC).
The Norwegian Data Protection Group has already sent a letter to the major
search engine with concerns over several data protection issues, especially
on data retention. A second letter is expected to come from the
European Commission on behalf of the Article 29 Working Party regarding
Google's compliance with the European data protection legislation. Following
this process, if Google privacy practices are considered in breach of the
European legislation, the company could be fined by the national data
protection authorities.
Google Deputy General Counsel Nicole Wong explained to MarketWatch
that the company "recently announced changes to our logs retention policies
which we believe address these concerns" raised by the Norwegian group's
letter. "We speak regularly with European regulators, privacy advocates and
users for their feedback as part of a continuous and rigorous review of our
privacy practices."
Privacy concerns are raised also by the US privacy NGO Electronic Privacy
Information Center along with the Center for Digital Democracy and the U.S.
Public Interest Research Groups that have filed a joint complaint with FTC
asking for an investigation into the potential threat to consumer privacy
posed by Google's planned acquisition of DoubleClick.
Google announced last week its intention to buy DoubleClick for 3.1 billion
USD, but the privacy experts fear that this "will give one company access to
more information about the Internet activities of consumers than any other
company in the world"
The complaint also says that Google, that reaches 75 percent of the
European search market, needs to meet the privacy standards as established
by the Organisation for Economic Co-operation and Development (OECD).
Marc Rotenberg, EPIC executive director, explained: "We believe that this
complaint provides an opportunity for (the) FTC to look closely at whether
the online-advertising industry provides adequate privacy protection for
Internet users and (to) consider the privacy impact of non-personally
identifiable information collected through search histories."
EU privacy body criticizes Google practices (19.04.2007)
http://www.marketwatch.com/news/story/eu-privacy-body-criticizes-google/stor...
Google draws privacy complaint to FTC (20.04.2007)
http://news.com.com/2100-1024_3-6177819.html
EPIC Files Complaint With FTC Regarding Google/DoubleClick Merger
(20.04.2007)
http://www.epic.org/privacy/ftc/google/epic_complaint.pdf
EDRI-gram: Google limits the search data retention period (28.03.2007)
http://www.edri.org/edrigram/number5.6/google-data-retention
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9. Complaints on lack of access to European Commission documents
============================================================
Statewatch has made two complaints to the European Ombudsman against the
European Commission, one for having failed to keep a proper public record of
documents and the other for having failed in 2006 to issue its annual report
on access to documents for 2005.
The group considers both cases as maladministration, in breach of Regulation
1049/2001 that sets up the EU bodies public registers of documents.
"Open, transparent and accountable decision-making is the essence of any
democratic system. Secrecy is its enemy and produces distrust, cynicism and
apathy among citizens and closed minds among policy makers. The European
Commission must be called to account for its actions or rather its failures
to act" said Tony Bunyan, Director of Statewatch.
The Regulation says that the European Commission, the Council of the
European Union and the European Parliament have to: "establish a register
which shall be operational by 3 June 2002" with all the documents produced
by the respective institutions. Thus, people can have access to information
regarding the measures adopted.
The indications of the Regulation say that these institutions must establish
a register of documents, with public access, where each document must be
referred to "without delay" with a reference number, the date, the subject
matter and a short description of the document. The Regulation also
stipulates access not only to the documents produced but also for those
received by the three institutions.
The Council of the European Union and the European Parliament have
established public registers with references to their documents that have in
general met the requirements of the Regulation while the same thing is not
valid for the Commission. Its register of documents contains only
legislative texts and adopted Commission reports with no reference to most
documents produced or received by the Commission.
Statewatch's complaint was accepted by the Ombudsman on 3 October 2006 and
was sent to the Commission asking for their answer by 31 December "at the
latest". The Commission requested an extension of the deadline first until
28 February 2007 and then until 31 March 2007. The deadline has expired and
the Commission still has not sent any response to the Ombudsman on this
matter.
Mr. Baroso, the President of the European Commission claimed that:
"As regards the public registers, Regulation 1049/2001 does not require the
institutions to set up comprehensive registers of all their documents" and
that the operation of comprehensive registers would be impossible.
The second complaint of Statewatch refers to the annual report for 2005
which should have been produced by the European Commission in 2006 as it is
required by the Regulation.
It is not the first time that Statewatch makes complaints against the
European institutions and has already won eight cases lodged against the
Council of the European Union with the European Ombudsman.
Statewatch lodges two complaints against the European
Commission with the European Ombudsman (19.04.2007)
http://www.statewatch.org/news/2007/apr/statewatch-ombuds-cases-april-2007.p...
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10. ENDitorial: The Transparent Drug Addict - Choosing Therapy Over Privacy?
============================================================
On 1 March 2007 the Austrian Department of Health enacted its highly
controversial revision of the Narcotic Substances Act, thus provoking an
immediate outcry from both the medical and pharmaceutical associations and
privacy experts.
The draft has also been heavily criticised in the run-up to its execution in
2006, Dr Hans Haltmayer, vice-president of the Austrian Association for
Medically Supported Therapy for Addicts (VGABS, Vsterreichische
Gesellschaft
f|r die arzneimittelgest|tzte Behandlung von Suchtkranken) describing the
amendments as "the ultimate worst case scenario from a medical point of
view". In order to receive substitution therapy, under the new law,
patients have to agree to have their intimate personal data transmitted by
their attending physician. Otherwise they won't receive their medication. In
other words: if you require a substitute drug, you lose your right to the
legal requirement concerning your confidential medical communication. This
clearly constitutes an infringement of the European Convention of Human
Rights (Article 8, Right to Respect for private and family life) (Article
23b/6).
"In terms of privacy, this new act is a total disaster", says Hans Zeger
from Arge Daten. Especially worrying is the amendment concerning a
certificate of substitution (Substitionsnachweis) compulsory for all
substitution patients, a contract including entries about the sort of
substitute drug, validity period of prescription, dose rate, mode of
distribution, and regulations concerning the take-out dose. Doctors and
pharmacists can be prompted to transmit these detailed histories of therapy
and distribution to the authorities and third parties, with a retention
period of three years. The data are to be processed in a centralised
national register of the Ministry of Health (Article 23j). The attending
physicians have to register all cases of substitute therapy in this index,
including all personal data of patients.
Supporters of the new regulations and the legislator argue that the
amendments and the adopted monitoring control system are thought to result
in a reduction of the misuse and abuse of the issued substances; they want
to prevent Doctor Shopping, multiple prescriptions and illegal trafficking
with prescribed drugs. It is also true that detailed documentation of
therapy will result in improved and more effective therapies with substitute
drugs. According to Dr Franz Pietsch, Austria's National Drug Coordinator:
"I cannot see any contradiction between our goal to extend our substitution
program and these newly introduced restrictive measures. They have been
called for by many drug-experts and, despite controversial discussions in
this field, constitute a professional and well-balanced consensus."
What is especially puzzling about these regulations is the obvious and
required incapacitation of patients - and doctors - as a prerequisite to
start therapy. Thus, instead of offering more and easier access to
substitution therapies for already stigmatised addicts, they create even
more obstacles. Haltmayer sums up the consequences: "Fewer addicts in the
clinics, more addicts on the streets. Let's not forget that the untreated
addict is the biggest threat to self and others."
Implications for patients are clear: if they do not accept the conditions of
the program, they will receive no treatment. What are the choices? To
describe this as the "patients' consent to the further use and processing of
their private and sensitive data" is disturbing. Especially substitution
programs have high drop out-rates, and these are going to rise with
increased surveillance. People in need of such programs are understandably
trying not to draw attention to their problems. Now that existing or
potential employers or landlords can access their personal data, chances are
that many addicts will drop out of therapy or never even consider starting
it. What is more, public authorities could refuse certain social services to
people on the grounds that they are registered as substitute drug patients.
There is more trouble ahead concerning the restrictive regulations about
providing patients with substitutes for a period of time (Mitgaberegelung):
patients have to consume the substitutes under the supervision of their
physician or pharmacist on the professionals' premises on a daily basis.
This makes it hard for addicts to hold down a regular job; exceptions to
this regulation depend on the duration of continuous treatment and an
existing employment or apprenticeship. Despite Dr Pietsch's statement that
"these restrictive regulations about providing patients with substitute
drugs are not meant to impair the patients' work-related, housing-related
and social environments any more than necessary", instead of
providing more and easier access to substitution-therapies they create even
more obstacles for already stigmatised patients.
Physicians find themselves in a predicament as well: left with the choice of
infringing either the Federal Act on Medical Profession or the Narcotic
Substances Act, many Austrian doctors have already dropped out of the
(scarce) substitution programs - which leaves many patients with little to
no chance for therapy, especially in rural areas.
In the run-up to the amendments Dr. Rolf Jens, president of the Vienna GP
Medical Association, pointed out: "It will become impossible for us
physicians to attend to patients in the best possible way according to
medical law and scientific state-of-the-art without violating the Narcotic
Substances Act. To participate in substitution therapies will become
increasingly difficult and extremely risky for physicians."
Hans-Joachim Fuchs, a practitioner based in Vienna, is preparing to file a
complaint to the Constitutional Court; he doubts the new law is in
accordance with the Austrian Constitution. He said in an interview
with the Austria Press Agency that already over twenty physicians,
patients and relatives were supporting his petition. He is confident that
the Constitutional Court will reach an agreement to revise the amendments or
at least parts of them.
This view is supported by Arge Daten. "We have examined the legal aspects of
the amendments very carefully and come to the explicit conclusion that there
exists absolutely no legal basis for the extensive release from the
physician's obligation to confidentiality," says Hans Zeger.
The Austrian Department of Health, however, is not impressed: they argue the
data are recorded, retained and transmitted for the protection and the
well-being of the patients; no revision of the amendments are planned.
Apparently drug addicts in Austria are expected to consider themselves lucky
to receive treatment at all. In essence this fringe group is asked to do
without their basic rights (and who will be next?).
The amendments are only one example in the increasingly bold thrusts into
the enforceability of scurrilous intrusions of basic rights: alarming
harbingers of a system of minimal health care devoid of privacy and human
dignity.
Arge Daten: "Therapy only without Privacy - the new road to a two-class
health care system" (only in German, 17.04.2007)
http://www2.argedaten.at/php/cms_monitor.php?q=PUB-TEXT-ARGEDATEN&s=57945tgw
A huge step backwards for substitution therapies (only in
German, 02.2006)
http://www.medical-tribune.at/dynasite.cfm?dssid=4169&dsmid=73402&dspaid=569886
Plattform Drogentherapie: Framework of the new Narcotic Substances Act (only
in German)
http://www.drogensubstitution.at/expertenmeinung/rahmenbedingungen-der-neuen...
Amendments to Substitution Therapies: increased surveillance, stricter rules
(only in German, 2007)
http://www.aerztewoche.at/viewArticleDetails.do?articleId=5760
The New Narcotic Substances Act: Worst Case Scenario or a Storm in a Teacup?
(only in German, 2007)
http://www.aerztewoche.at/viewArticleDetails.do?articleId=4212
Substitute therapies abandoned by physicians (only in German, 2007)
http://orf.at/070417-11352/index.html
Narcotic Substances Act condemned by the Vienna Medical Association (only in
German, 17.04.2007)
http://wien.orf.at/stories/186186
Federal Law Gazette of the Austrian Republic; Amendments to the Narcotic
Substances Act (only in German, 1.03.2007)
http://www.sbg.ac.at/ver/links/bgbl/2007b050.pdf
(Contribution by Andreas Krisch, EDRI-member VIBE!AT - Austrian Association
for Internet Users )
============================================================
11. Recommended Reading
============================================================
OECD - Study on Participative Web: User-created content
The concept of the "participative web" is based on an Internet increasingly
influenced by intelligent web services that empower the user to contribute
to developing, rating, collaborating on and distributing Internet content
and customising Internet applications. This study describes the rapid growth
of "user-created content" (UCC), its increasing role in worldwide
communication and draws out implications for policy.
http://www.oecd.org/dataoecd/57/14/38393115.pdf
============================================================
12. Agenda
============================================================
27-29 April 2007, Yale Law School, USA
Access To Knowledge Conference (A2K2), Information Society Project
http://research.yale.edu/isp/eventsa2k2.html
1-4 May 2007, Montreal, Canada
7th Conference on Computers, Freedom, and Privacy (CFP2007)
http://www.cfp2007.org/live/
15-16 May 2007, Brussels, Belgium
The European Patent Conference - EUROPACO-2
http://www.eupaco.org/eupaco2
18 May 2007, Oxford, UK
Global Internet Filtering Conference 2007
The OpenNet Initiative is holding its first public conference to discuss the
current state of play of Internet filtering worldwide.
http://cyber.law.harvard.edu/oniconference07/Main_Page
18-19 May 2007, Brasov, Romania
eLiberatica - The Benefits of Open and Free Technologies - Romanian IT Open
Source and Free Software Conference
http://www.eliberatica.ro/
11-15 June 2007, Geneva, Switzerland
Provisional Committee on Proposals Related to a WIPO Development Agenda:
Fourth Session
http://www.wipo.int/meetings/en/details.jsp?meeting_id=11927
14 June 2007, Paris, France
ENISA/EEMA European eIdentity conference - Next Generation Electronic
Identity - eID beyond PKI
http://enisa.europa.eu/pages/eID/eID_ws2007.htm
15-17 June 2007, Dubrovnik, Croatia
Creative Commons iSummit 2007
http://wiki.icommons.org/index.php/ISummit_2007
17-22 June 2007 Seville, Spain
19th Annual FIRST Conference, "Private Lives and Corporate Risk"
http://www.first.org/conference/2007/
18-22 June 2007, Geneva, Switzerland
Second Special Session of the Standing Committee on Copyright and Related
Rights (SCCR)
http://www.wipo.int/meetings/en/details.jsp?meeting_id=12744
============================================================
13. About
============================================================
EDRI-gram is a biweekly newsletter about digital civil rights in Europe.
Currently EDRI has 25 members from 16 European countries.
European Digital Rights takes an active interest in developments in the EU
accession countries and wants to share knowledge and awareness through the
EDRI-grams. All contributions, suggestions for content, corrections or
agenda-tips are most welcome. Errors are corrected as soon as possible and
visibly on the EDRI website.
Except where otherwise noted, this newsletter is licensed under the
Creative Commons Attribution 2.0 License. See the full text at
http://creativecommons.org/licenses/by/2.0/
Newsletter editor: Bogdan Manolea