============================================================ EDRI-gram biweekly newsletter about digital civil rights in Europe Number 5.8, 25 April 2007 ============================================================ Contents ============================================================ 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 ============================================================ 1. IPRED2 voted in first reading by the European Parliament ============================================================ 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 ============================================================ 2. French Government Decree on data retention - another Big Brother act ============================================================ 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 ============================================================ 3. Data retention and increased surveillance in Germany ============================================================ 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) ============================================================ 4. Copyright clearing for EU digital libraries project ============================================================ 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... ============================================================ 5. E-voting in France - after the first round of presidential elections ============================================================ 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... ============================================================ 6. New anti-racism documents on the European agenda ============================================================ 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 ============================================================ 7. Free file sharing in the copyright law supported by a Norwegian Party ============================================================ 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 ============================================================ 8. Privacy bodies investigate Google's data protection standards ============================================================ 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 ============================================================ 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... ============================================================ 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 Information about EDRI and its members: http://www.edri.org/ - EDRI-gram subscription information subscribe by e-mail To: edri-news-request@edri.org Subject: subscribe You will receive an automated e-mail asking to confirm your request. unsubscribe by e-mail To: edri-news-request@edri.org Subject: unsubscribe - EDRI-gram in Macedonian EDRI-gram is also available partly in Macedonian, with delay. Translations are provided by Metamorphosis http://www.metamorphosis.org.mk/edrigram-mk.php - EDRI-gram in German EDRI-gram is also available in German, with delay. Translations are provided Andreas Krisch from the EDRI-member VIBE!AT - Austrian Association for Internet Users http://www.unwatched.org/ - Newsletter archive Back issues are available at: http://www.edri.org/edrigram - Help Please ask if you have any problems with subscribing or unsubscribing. ----- End forwarded message ----- -- Eugen* Leitl <a href="http://leitl.org">leitl</a> http://leitl.org ______________________________________________________________ ICBM: 48.07100, 11.36820 http://www.ativel.com http://postbiota.org 8B29F6BE: 099D 78BA 2FD3 B014 B08A 7779 75B0 2443 8B29 F6BE