============================================================ EDRi-gram biweekly newsletter about digital civil rights in Europe Number 10.3, 15 February 2012 ============================================================ Contents ============================================================ 1. European Anti-ACTA protests from 11 February 2. European Commission discusses tactical, partial retreat on ACTA 3. European Commission "Roadmap" for review of the IPR Enforcement Directive 4. Hadopi takes the final steps towards cutting Internet access 5. Two Strikes in Germany? 6. Software-hardware bundling not accepted in France 7. UK: 3 million checks on criminal records in 2011 8. RFID - a dangerous fashion trend highlighted on German streets by FoeBuD 9. Irish ISP puts its customers' personal data at risk 10. EU DP Regulation Proposal: The French CNIL defends its turf 11. Recommended Action 12. Recommended Reading 13. Agenda 14. About ============================================================ 1. European Anti-ACTA protests of 11 February ============================================================ Several tens of thousands of citizens from an estimated 200 cities in Europe went out in the streets on a cold 11 February 2012, in a massive pan-european protest against ACTA and to support digital civil rights. Several EDRI members and observers have reported for the EDRi-gram on what happened in their countries. The biggest turnout was in Germany, where 100 000 protesters flooded the streets to demonstrate against the ACTA agreement. These massive protests in spite of sub-zero temperature have caught the attention of not only politicians but also media and the wider public completely by surprise. A day before, the German government backed down in face of this wave of online protest and postponed the signing of ACTA until the decision of the European Parliament. The demonstrations were organized entirely in a decentralized manner via the Internet. The participants were mostly very young and took part in a demonstration for the first time. In Berlin 10 000 people took the streets against ACTA, in Munich even 16 000. Never before have so many people protested for reforming copyright legislation and against overshooting surveillance of the digital realm. Because of the protests, ACTA became the main topic in the news in Germany and has remained so ever since. For the first time, these protests have ignited a wider debate on how the outdated copyright law can be adapted to the requirements of the digital age. Therefore, EDRi-member Digitale Gesellschaft e.V. demanded: "We must reform copyright but must not cement it with ACTA." In the capital of Bulgaria approx 6-8 000 people showed up in one of the largest demonstration since 1997, shouting slogans against ACTA and for Internet freedom. In some cases the local police did not allow the participants in Sofia to wear the Guy Fawkes - or "V" - masks and even asked for purchase proof for the laptops people brought at the event, to "make sure they were not stolen". Since the Austrian government signed ACTA on 26 January, a broad movement against the treaty has formed. It consists of activists in and around the EDRi member VIBE!AT, a group of former Pirate Party members who started their own initiative (netzfreiheit.org), political parties and representatives (the Greens, MEP Ehrenhauser and the Pirate Party) and Anonymous. Together, these different groups have dominated the public perception of ACTA. The efforts included: concentrated press releases to push the story out of the tech departments, press conferences held by ACTA opponents and discussions in independent media formats. The action peaked on 11 February when all over Austria close to 10 000 people took to the streets to protest against ACTA. Around 5 000 Romanians gathered in over 20 major cities, most of them in Cluj-Napoca and Bucharest, to demonstrate against ACTA. They were also chanting for Internet freedom and against surveillance. There are several national online petitions gathering more than 40 000 signatures asking for ACTA not to be ratified by the European Parliament or the national Parliament. After the publication of the information that the Czech Republic had signed ACTA, EDRi-member Iuridicum Remedium published a Czech translation of the campaign "Call your MPs" (EDRi). The media began to seriously inform about ACTA and the first debate about the agreement was held on 2 February. On 6 February the Czech government office issued a statement that the Czech Republic had stopped the ratification of ACTA, but that didn't stop several Czech cities to join the demonstration against ACTA on 11 February 2012. Around a thousand Hungarians gathered in Budapest for the country's first ACTA protest, with smaller rallies held in Szikesfihervar, Szeged and Pics. The demonstrations were organized by the Pirate Party movements and generated substantial media coverage. Close to a thousand Hungarians gathered in Budapest for the the nation's first ACTA protest, with smaller rallies also held in Szikesfihervar, Szeged and Pics. The demonstrations were organized by the Hungarian Anonymous Group, Occupy Budapest and the Pirate Party movement. In Finland about 400 people attended the anti-ACTA demonstration on 11 February in the streets of Helsinki. The demonstrations helped raise media attention, especially because earlier coverage on ACTA was very low. The Finnish Parliament is expected to discuss ACTA in Autumn 2012. Protesters also demonstrated against ACTA in The Netherlands. People in various cities, including Amsterdam and Rotterdam, faced the cold and expressed their discontent with ACTA. In Amsterdam some 250 people gathered in Dam Square where there were some improvised speeches. MEP Marietje Schaake visited the demonstration. Halfway in the afternoon, about half of the demonstrators made an improvised march through the city. In Brussels, around 300 people protested in the city centre shouting slogans against ACTA and rolling out a huge banner: "ACTA: Sharing culture is a now crime - Thank you EU!" Participants included local politicians, representatives from several Belgian NGOs (such as Constant, datapanik and Nurpa), international NGO AccessNow.org, press people and many Anonymous masks. Around 500 protesters also gathered in central London outside the offices of rights holder representative groups to protest against ACTA. There are several online petitions against ACTA gathering milllions ofore than 40 000 signatures (the Access global petition has almost 400 000 and the Avaaz petition has over 2 million signatures already). Pictures from demonstrations on 11.02.2012 Sofia http://www.dnevnik.bg/photos/2012/02/11/1764407_fotogaleriia_protestut_sresh... Austria http://fotos.stopp-acta.at/ Czech Republic http://www.rozhlas.cz/zpravy/spolecnost/_galerie/1017187?type=image&pozice=1 Germany http://netzpolitik.org/2012/bilder-von-berliner-anti-acta-demo/ Romania http://www.facebook.com/spune.nu.acta?sk=photos Bruxelles https://secure.flickr.com/photos/hermapix/sets/72157629276115405/ Hungary http://bit.ly/xlAkEa Finland http://www.flickr.com/photos/charris87/sets/72157629270109515/ Several European cities http://www.numerama.com/magazine/21630-manif-anti-acta-les-meilleures-photos... Videos from demonstrations on 11.02.2012 Sofia http://www.youtube.com/watch?v=6Y59XxJoStA Austria http://youtu.be/ViXKnH_Vnu8 Bucharest http://www.youtube.com/watch?v=R2st38pe5CQ Czech Republic http://www.stopacta.cz/videa.html Hungary https://www.youtube.com/watch?v=-1Hscb-HGPc Amsterdam http://www.youtube.com/user/koelkast30 Helsinki http://www.youtube.com/watch?v=Z0CdQIDbujI National platforms against ACTA Austria http://stopp-acta.at Czech Republic http://www.stopacta.cz Romania http://www.stopacta.ro UK http://www.openrightsgroup.org/campaigns/stopacta Global petition against ACTA and map of protests https://www.accessnow.org/policy-activism/press-blog/acta-protest-feb-11 Aaavaz Petition: ACTA: The new threat to the net https://secure.avaaz.org/en/eu_save_the_internet_spread/ (contributions by several EDRi members and observers) ============================================================ 2. European Commission discusses tactical, partial retreat on ACTA ============================================================ At the meeting of the heads of cabinet of the European Commission on Monday of this week, Commissioner De Gucht's representative announced that a referral of ACTA to the Court of Justice of the European Union is currently being considered. The minutes of the meeting, which have been obtained by EDRi, say that the head of cabinet described the "strong mobilisation" against the Agreement by "certain NGOs and movements active on the Internet" and stated that a referral of the Agreement to the Court of Justice is being considered. It is noteworthy that the suggestion is only to check the compatibility of ACTA with primary EU law. Such a referral, depending on how it is framed, risks being quite vague and may not lead to a comprehensive response. However, any broadly favourable response from the Court would most certainly be used to push through the Agreement, on the basis that the ruling "proves" that there is no problem. The head of cabinet added that it is necessary to instigate a period of reflection on how the EU should position itself on this issue and to make an effort to go beyond the argument that growth in the digital economy is only possible with adequate protection of intellectual property. The Secretary General of the Commission closed the discussion by saying the Commission would return to the dossier in due course, after a "period of thorough reflection." This brief exchange of views exposes a number of interesting points. Firstly, the Commission, and Commissioner De Gucht in particular, were clearly profoundly impressed by the weekend's demonstrations, contrary to the Commission's public statements. Secondly, the Commission now has sufficient doubts regarding the legality of the Agreement, again contrary to the Commission's public statements, that a request for confirmation of legality from the European Union's highest court is being seriously considered. Finally, the comments of the Secretary General clearly show that she sees a need for the Commission to think again. Bearing in mind the extreme credibility problems of the European Commission on this dossier, any hint that such a referral is a delaying tactic, to wait until the furore surrounding the Agreement has died down, will further inflame the tensions around ACTA. The Commission must finally recognise the breadth of serious criticism of ACTA, from thirteen members of the Sakharov Network of winners of the European Parliament's Sakharov Prize for Freedom of Thought, from the European Data Protection Supervisor, from the Organisation for Security and Cooperation in Europe, from the UN Special Rapporteur on Freedom of Expression (in his general comments on privatised online enforcement), from the group of European Academics and the European Economic and Social Committee. It may be comfortable to caricature critics of ACTA as ill-informed anti-IPR activists. As with many comfortable assumptions, it is wrong, it is insulting and it is counterproductive. EDRi will write to the European Commission in order to warn of the dangers of being perceived to be manipulating the decision-making process by sending a weakly framed question to the Court of Justice or claiming that this will give a comprehensive answer to critics' concerns. The Commission needs to draw the consequences of the need for "thorough reflection" and use all legal and research options at its disposal to address the problem of the likely incompatibility of ACTA with primary and secondary European Union law. This needs to be done in a comprehensive manner. Furthermore, if the Commission does indeed want "a period of thorough reflection," it should also undertake a thorough impact assessment, in order to study the possible impact of ACTA, regardless of the legality of the Agreement. By adopting ACTA, a decision would be made to make it impossible to reform key aspects of the 2004 IPR Enforcement before reviewing their impact and to export those measures to other countries, a decision would be made to encourage the Internet companies abroad to police their networks and potentially use this power to restrict access to markets, a decision is being made to impose disproportionate rules on damages and impose a grossly unsatisfactory set of criteria for imposing criminal sanctions for infringements. It is time for a full and independent impact assessment. Why would the Commission reject this request? Perhaps this is the one time that the phrase "if you have nothing to hide, you have nothing to fear" actually makes sense. If all of this is done, we will find ourselves in about two years in the position we should be in already - with a legal proposal, backed up with an impact assessment that can be discussed on its merits. Sakharov Prize winners: Online Freedoms threatened by another step towards treaty's adoption (15.12.2011) http://en.rsf.org/union-europeenne-online-freedoms-threatened-by-15-12-2011,... EDPS: Anti-Counterfeiting Trade Agreement: EDPS warns about its potential incompatibility with EU data protection regime (22.02.2010) http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/P... OSCE media representative urges European Parliament to reassess ACTA to safeguard freedom of expression (14.02.2012) http://www.osce.org/fom/88154 UN Special Rapporteur - Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue (16.05.2011) http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en... Academics' Opinion on ACTA (11.02.2011) http://www.iri.uni-hannover.de/tl_files/pdf/ACTA_opinion_110211_DH2.pdf Economic and Social Committee on IPR Strategy (12.01.2012) https://www.laquadrature.net/wiki/EESC_on_IPR_Strategy IPR Enforcement Directive http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0048R%2801... (Contribution by Joe McNamee - EDRi) ============================================================ 3. European Commission "Roadmap" for review of the IPR Enforcement Directive ============================================================ The European Commission recently published a "roadmap" to the review of the Directive on Intellectual Property Enforcement (2004/48/EC). As it is becoming traditional, the Commission neatly mixes up all kinds of infringements, from dangerous fake medicines to illegal downloads and seeks a "one size fits all" solution. In addition, the previously published implementation report graphically describes the breakdown in the credibility and perceived legitimacy of copyright in the digital environment (referring, for example, to "ubiquitous" infringements). Faced with the unquestionable failure (hence the calls for a review) of the existing "one size fits" all legal framework and the seemingly obvious need to reform the legal framework for copyright, the approach is to plough forward with increased enforcement, as well as increased involvement of the private sector in practical law enforcement. A non-committal statement that "measures aimed at promoting the legal offer" is made but not expanded upon. Interestingly, the "road map" explains that the current Directive's definition of "commercial scale" needs to be clarified, in order to ensure that individual consumers are not targeted. This is quite significant, because the definition is significantly narrower than the one in the Anti-Counterfeiting Trade Agreement (ACTA). This raises a fundamental question - how can the EU be so confident that ACTA's definition of "commercial scale" will not lead to disproportionate criminalisation of end-users, when it believes that a more precise definition risks leading to disproportionate measures against citizens in civil law? It is also somewhat surprising to note that no problem has been identified regarding the provision of personal data by Internet intermediaries - despite the widespread of abuse of both process and data, particularly in the UK and Germany. The focus instead is on developing the tools for obtaining "evidence" from intermediaries. It must be pointed out, of course, that much of what is in the IPR Enforcement Directive is proposed in ACTA. As a result, as long as the European Commission harbours hopes of being able to ratify that agreement, it will consider itself to be prevented from making or even considering any significant changes or improvements to this Directive. Roadmap on IPRED (01.2012) http://ec.europa.eu/governance/impact/planned_ia/docs/2011_markt_006_review_... ACTA http://register.consilium.europa.eu/pdf/en/11/st12/st12196.en11.pdf IPR Enforcement Directive Implementation Report (22.12.2010) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0779:FIN:EN:H... (Contribution by Joe McNamee - EDRi) ============================================================ 4. Hadopi takes the final steps towards cutting Internet access ============================================================ French authority Hadopi announced on 13 February 2012 that its Commission for the Protection of Rights had sent the first complaints to court against Internet users for illegal downloading of files as the last stage in its three-strike system. Since November 2010, more than 800 000 French Internet users have received e-mail alerts that they were suspected of illegal downloading of copyrighted material. Out of these, about 45 000 considered recidivists received a letter of warning and after six months around 165 seem to have been convened by the Commission on the Protection of Rights to be sent to court for a decision to have their Internet connection cut. Although a precise number has not been revealed, a Hadopi spokesperson stated the cases had been sent to the prosecutors all over France, according to the residence places of the accused Internet users. The Prosecutor's Office will process cases and decide whether to take them to court which may apply a maximum fine of 1 500 euro and a 1 month suspension of the Internet service. The offence that the Internet users are being accused is of not implementing a system to "secure" their Internet connection or not having made efforts to make such as system operates properly. Hadopi produces as proof of the offence only the proceedings drafted by the assigned agents on the basis of the findings provided by the company hired by the rightsholders. The law allows for a speedy simplified procedure for Hadopi where there is no need to hear the defendant and through which the court may apply sanctions if "it comes out from the judicial investigation that the facts the user is accused of, are simple and proven." The ministry of justice has even issued a letter asking the prosecutor offices to avoid, except for particular cases, a more detailed investigation because the proofs provided by Hadopi are enough to prove the offence. "This is the myth of the pedagogical Hadopi that slumps. All those who wanted to make you believe that Hadopi was a device meant only to sensitize young Internet users on copyright, are now facing their own contradictions" said Aurilie Filippetti, in charge of culture for the presidential candidate Frangois Hollande's campaign. Hadopi transmits its first cases to court! (only in French, 13.02.2012) http://www.numerama.com/magazine/21634-hadopi-transmet-ses-premiers-dossiers... Internet users sent to court by Hadopi (only in French, 13.02.2012) http://www.lepoint.fr/chroniqueurs-du-point/emmanuel-berretta/exclusif-les-i... Hadopi: the first cases sent to court. But how many? (only in French, 13.02.2012) http://www.zdnet.fr/actualites/hadopi-les-premiers-dossiers-transmis-a-la-ju... EDRi-gram: French Internet users on the verge of being disconnected (5.10.2011) http://www.edri.org/edrigram/number9.19/hadopi-report-france-18-months ============================================================ 5. Two Strikes in Germany? ============================================================ On 3 February 2012, the German Ministry of Economics and Technology (BMWi) published a comparative study on graduated response systems in Europe which have been established to fight against copyright infringements on the Internet. The study looked at the situation in France, UK and Ireland. Regarding the Hadopi system in France, the study found that one of the main results and successes is the drop by 31% of peer-to-peer between April 2010 and April 2011, thus completely ignoring the rising use of streaming and VPN in France. Even though the study admits that illegal filesharing has "not caused any serious collapse in the turnover of the industry" (p. 61), the Ministry recommends the introduction of a "two strikes" or "pre-litigation" model for Germany. According to the study, this model should be based on a combination of "educational notifications" and the disclosure of information to rightsholders. The Secretary of State Hans-Joachim Otto considered the study a valuable basis for the future discussions regarding online piracy. However, cutting off users from the Internet has been ruled out. As significant grounds for concern were already well known (it is widely understood to have been mainly written by media lobbyists and rightsholders), EDRi-member Digitale Gesellschaft published a shadow report. It pointed out that existing models raise significant and fundamental data protection problems. For instance, the Irish voluntary three-strikes system is currently experiencing legal difficulties due to such concern and numerous complaints to the data protection authority. In Ireland, hundreds of notifications were received by innocent users. The shadow report also highlighted the high costs for the French state compared to the almost non-existing benefits for the economy. The shadow report concluded that all efforts and means should be focused on the creation of attractive offers instead of repressive measures and recommended a general reform of outdated copyright laws. Shadow report of the Digital Gesellschaft (only in German, 02.2012) http://digitalegesellschaft.de/wp-content/uploads/2012/02/schattenbericht-di... Long version of the BMWi study (only in German, 01.2012) http://www.bmwi.de/BMWi/Redaktion/PDF/Publikationen/Technologie-und-Innovati... (Contribution by Kirsten Fielder - EDRi) ============================================================ 6. Software-hardware bundling not accepted in France ============================================================ The giant Lenovo computer hardware manufacturer that sold computers with Windows OS included suffered a defeat in a French court of Aix-en-Provence in a case introduced by a French customer. This is another case in a long line of defeats in France for companies that sell computers who include mandatory unwanted software licences in their products' sales. The case was brought to court in 2007 by Mr. Pitrus who decided to buy a Lenovo laptop. As the laptop was not offered for sale without a Windows Vista license and as he was using GNU-Linux, Mr. Pitrus rejected the Windows Vista End User License Agreement (EULA) and contacted Lenovo to obtain a refund. His request being denied, he brought the case to court. After a first negative ruling in the court of Tarascon, the French Court of Cassation reversed the judgment in a decisive ruling in November 2010 and sent back the case to a court in Aix-en-Provence. The final judgement obliged Lenovo to pay the plaintiff 120 euro as a refund for the software, but also 800 euro for personal damages and 1000 euro for legal expenses. The judge insisted on the distinction between hardware and software and rejected Lenovo's argument that the sale in question was that of "complex products made of an assembly of indispensable components for the definition of a product as desired by the manufacturer". The company even compared the sale of the computer which cannot operate without the software to that of a car which cannot run without wheels. The judge explained that the hardware is the object of a sale contract giving the owner full right over it after having paid for it. On the other hand, the supply of software is the provision of a service which gives only the right to usage of the software (fact which is actually stipulated in the licence of the software). Moreover, joking over the comparison made by Lenovo with the car and wheels, he considered that a better comparison would be that of selling a car with a driver included. This is a real victory and this significant decision is a positive precedent as the legal ground of the ruling was European directive 2005/29/CE on unfair business-to-consumer commercial practices in the internal market, which could be used again as legal argument in similar cases in all EU countries. Hardware-software bundling crumbles in France (6.02.2012) http://no.more.racketware.info/news/hardware-software-bundling-crumbles-fran... Condemnation of Lenovo, symbol of computer and software bundled sale (only in French, 6.02.2012) http://non.aux.racketiciels.info/nouvelles/condamnation-lenovo-symbole-vente... Court's Decision (only in French, 9.01.2012) http://www.cuifavocats.com/IMG/pdf/20120109_JproxAixEnProvence_PetruscLevovo... Pitrus vs. Lenovo: the supply of unsolicited software is a unfair commercial practice (only in French, 6.02.2012) http://www.cuifavocats.com/Petrus-c-Lenovo-la-fourniture-de List of similar French cases (only in French) http://non.aux.racketiciels.info/documentation/droit/#jugements-proximite-et... ============================================================ 7. UK: 3 million checks on criminal records in 2011 ============================================================ UK Privacy campaign group Big Brother Watch has recently revealed that almost 3 million Criminal Records Bureau (CRB) checks were carried out in England and Wales in 2011 by almost 4000 registered bodies. The figures basically say that 1 in 17 Britons was checked and that a large number of organizations had access to the individuals' private data without the knowledge of the individuals in question. Big Brother Watch said the figures were "a sad indictment of a country that has lost all sight of proportion and has substituted common sense for a piece of paper". CRB checks were meant to protect children from coming into contact with dangerous adults but the reality is that any person with or without a conviction or a simple caution which has nothing to do with children, based on a CRB check, may be considered as a dangerous criminal. And an even more worrying aspect is that the system has proven wrong time and again leading to perfectly innocent people being considered sex offenders and losing their jobs. In 2010, Big Brother Watch already revealed the inaccuracies and inefficiencies of the CRB system (which should be entirely reliable) which have been adding up to an average of 7 errors a day since 2004. On 9 February 2012, High Court judge Kenneth Parker suggested that the CRB system was disproportionate and not compatible with the right to private life stipulated by the European Convention on Human Rights and that the issue fully deserved to be considered by the Court of Appeal. Deputy Prime Minister Nick Clegg stated the system would be scaled back and the Protection of Freedoms Bill included plans to ease Criminal Records Bureau checks. Regarding the respective changes, Home Office minister Lord Henley stated: "What we are trying to do is create a system that will provide the necessary safeguards but does not make parents feel that their children are automatically safe - parents must still have the duty of looking after their children by warning them of potential dangers," adding at the same time that schools and other organisations would be allowed to insist on CRB checks. 3 Million Background Checks in 2011 (10.02.2012) http://www.bigbrotherwatch.org.uk/home/2012/02/3-million-background-checks-2... The Grim Consequences of CRB Mistakes (22.04.2010) http://www.bigbrotherwatch.org.uk/home/2010/04/the-grim-consequences-of-crb-... CRB checks 'near 3m' says Big Brother Watch (10.02.2012) http://www.bbc.co.uk/news/uk-16970424 Student in legal challenge to criminal record of GMP warning for stealing bikes when he was aged 11 (9.02.2012) http://menmedia.co.uk/manchestereveningnews/news/s/1485057_student-in-legal-... ============================================================ 8. RFID - a dangerous fashion trend highlighted on German streets by FoeBuD ============================================================ On 11 January 2012, EDRi member FoeBuD staged an event on a shopping street in Bielefeld, Germany, to raise awareness about RFID tags ("spy chips") in clothing. FoeBuD played an important role in putting this issue on the political agenda in 2003, when major German retailer Metro AG conducted RFID field trials in a model supermarket, dubbed "Future Store". While RFID roll-outs in supermarkets have not occurred as quickly as expected at that time (probably due in part to the concerns raised by privacy advocates), recently the fashion industry seems to have taken a lead in introducing RFID in goods sold to and carried by consumers. RFID ("Radio Frequency Identification") tags are tiny chips with an antenna, whish respond to a radio signal by transmitting back some previously stored data including their unique serial number. Because every single chip can be recognised by this ID, an RFID tag is not just a contactless product bar code - it allows every individual item to be identified. This makes RFID a very interesting technology for retail logistics. But an RFID tag on a highly personal item (such as a piece of clothing) could identify its owner if the owner's personal data somehow becomes available - if the owner makes a payment with a card, for example. The owner's data does not need to be stored on the chip itself, it could be related to the chip's ID via an external database. Personal tracking becomes a distinct possibility, indeed a patent for this has been granted in the US. RFID data transmissions cannot be seen or heard, so FoeBuD looked for a way to visualise the threat to any passer-by on a regular shopping street. An RFID reader was connected to a portable computer and projector, which beamed any RFID data that was read onto a "speech bubble"-shaped banner. Suddenly it was there for anyone to see that RFID-tagged clothes are effectively announcing an identity to every "interested" party reading the device at a distance of up to 10 metres (approximately, and depending on the type of RFID chip and reader). At this event, FoeBuD targeted local fashion company Gerry Weber and Italian fashion brand Peuterey (which had received a German Big Brother Award from FoeBuD in 2011 for introducing RFID in a particularly secretive way). Gerry Weber had actually been in contact with FoeBuD about their RFID roll-out, but had ultimately chosen not to implement a fundamental requirement: that the RFID tags be detached from every item at the point of sale, without the customer having to ask for this. The FoeBuD activists had alerted Gerry Weber about their action and were met by the company's CIO and RFID project leader, and later by the company's owner Gerhard Weber himself, who regrettably did not show a lot of understanding towards the activists' concerns. But at least it is possible to tear off Gerry Weber's RFID tags. In contrast, Peuterey does not give any in-store information to its customers, and their RFID tags are sown in beneath a label imprinted "do not remove this label". FoeBuD's event and their demand that all RFID tags be removed or permanently disabled at the point of sale were covered by the regional TV and by newspapers across Germany. The group hopes to keep the momentum going. FoeBuD's coverage about their action, with pictures (only in German, 01.2012) http://www.foebud.org/rfid/wdr-sendung-markt-kleidungsstuecke-mit-rfid-schnu... Coverage by regional public TV station WDR (only in German, 16.01.2012) http://www.wdr.de/tv/markt/sendungsbeitraege/2012/0116/01_rfid-chips.jsp Privacy advocates discover RFID chips in clothing (only in German, 16.01.2012) http://www.zeit.de/digital/datenschutz/2012-01/foebud-rfid-gerry-weber Why RFID tags are a danger to consumers (only in German, 18.01.2012) http://www.sueddeutsche.de/digital/2.220/rfid-aufkleber-als-schnueffelchips-... BigBrotherAward 2011 to Peuterey (English summary, full speech in German) https://www.bigbrotherawards.de/2011/.tec BigBrotherAward 2003 to Metro (available in English and German) https://www.bigbrotherawards.de/2003/.cop Report on Metro's "Future Store" and 2003/04 RFID scandal: http://www.spychips.com/metro/overview.html US patent 7,076,441 on "Identification and tracking of persons using RFID-tagged items in store environments" http://patft.uspto.gov/netacgi/nph-Parser?Sect2=PTO1&Sect2=HITOFF&p=1&u=/netahtml/PTO/search-bool.html&r=1&f=G&l=50&d=PALL&RefSrch=yes&Query=PN/7076441 (Contribution by Sebastian Lisken, EDRi member FoeBuD - Germany) ============================================================ 9. Irish ISP puts its customers' personal data at risk ============================================================ Personal data of more than 6 800 current and former customers of Eircom's (biggest Irish ISP) mobile divisions may be at risk after three unencrypted laptops have been stolen, two from the company offices in Parkwest Dublin during 28 December 2011 - 2 January 2012 and one from an employee's home on 19 December 2011. Eircom stated that most of the data involved were personal data including name, address and telephone numbers, but in some cases passport, driving licence numbers or utility bills and for about 550 customers the data on one of the laptops included financial information such as bank accounts, debit and credit card information. Data Protection Commissioner Billy Hawkes considers the breach as one of the most serious ones and said that Eircom had put its customers at risk of identity theft. He also criticised the company for the delay in announcing people of the thefts that would have given them the opportunity to protect themselves. "Our normal delay in getting reports in is 24 to 48 hours which is our guideline for reports of such incidents. So I find it very surprising to hear that reason being given by Eircom," said Hawkes as a reaction to Eircom's statement that the delay in reporting came from the fact that the company had tried to find out what data had been breached. Furthermore, as Hawkes said, Eircom as a telecom company was supposed to have higher protection standards and therefore it was "very surprising that in two separate incidents Eircom laptops were not encrypted." His conclusion is that "telecommunications companies have a huge amount of data on all of us and should be subject to more stringent requirements." Eircom stated the incidents had been immediately reported to the police, two separate investigations were ongoing and that there was no evidence that the lost data has been used by a third party. "Eircom treats privacy and protection of all data extremely seriously and we have taken the following pro-active measures to address the situation. As a precautionary step, we have contacted the Irish Banking Federation, who has notified their members of the potential risk to data for affected eMobile and Meteor customers." The company also stated it would contact by telephone those customers whose financial data was potentially at risk, and would send letters to all affected customers to notify them of the breach. The fact that the laptops in question were unencrypted was considered as inexcusable and according to data protection consultant Daragh O'Brien the delay in alerting the commissioner's office suggested faulty prevention and detection policies in Eircom. Information security consultant Brian Honan also said that companies were obliged, under various laws, to ensure the proper security of information such as card payment information. According to Eircom, a review of the group's encryption policy is in progress "to ensure all computers and laptops are compliant with the group's encryption policy." Eircom customer data breached (10.02.2012) http://www.irishtimes.com/newspaper/breaking/2012/0210/breaking9.html Press Release - eircom Group Statement on Laptop Theft http://pressroom.eircom.net/press_releases/article/eircom_Group_Statement_on... Eircom slammed for laptop and data loss (13.02.2012) http://www.scmagazineuk.com/eircom-slammed-for-laptop-and-data-loss/article/... ============================================================ 10. ENDitorial: EU DP Regulation Proposal: The French CNIL defends its turf ============================================================ The French CNIL was one of the first national Data Protection Authority (DPA) to react to the publication, by the European Commission, of its Data Protection Framework Proposal on 25 January 2012. In a very negative press release published the day after, while quickly welcoming "substantial improvements that were expected and necessary", the CNIL develops surprising arguments to justify its particular concern, namely that "the defence of data protection" would be "driven apart from citizens". CNIL's anger is directed at Article 51 provision, defining the competent DPA. This article provides that the competent supervisory authority shall be the one "of main establishment of the data controller or processor". When examining CNIL's arguments, one might wonder whether it has carefully and entirely read the proposed Regulation before showing such a reaction. This impression is even strengthened when learning about CNIL's intense lobbying towards the French Parliament and Government, which need to provide their opinion during the EC proposal discussion process. Actually, the European Affairs Commission of the French National Assembly has already adopted a resolution in line with the CNIL's opinion, and the Constitutional Laws Commission of the French Senate is currently conducting hearings (inviting inter alia French EDRi- ember IRIS to provide its views on 14 January), before adopting its own resolution on the proposed EC Data Protection Framework (this French Parliament quick process is determined by next Presidential elections, meaning that the Parliament will have to stop its work early March 2012). Arguments put forward by the CNIL could easily be refuted, especially since some of them are based on a wrong or partial interpretation of the proposed Regulation. The CNIL claims that the provision "will reduce the national DPAs role to that of a mailbox"; "will deprive widely the citizens of the protection offered by their national authority"; "will constitute a real regression of citizens' rights", which "would finally be less protected than consumer rights" given that consumer laws allows for the competence of the consumer's jurisdiction. Interestingly enough, the CNIL gives as example "a web user having a problem with a social network which main establishment is in another member state". Furthermore, the CNIL fears that the provision will lead to "forum shopping" practices by companies when they decide on their country of main establishment, a situation that would end not only in "dumbing down" of citizens' data protection, but also in putting at risk the French economy! Finally, the CNIL "considers that the proposed scheme leads to a centralization of the regulation of privacy in the hands of a limited number of authorities", and that "the European Commission will also benefit from an important normative power". It is true that the EC will play an important role, that could be balanced through improving the powers, independence and processing of the European Data Protection Board (Chapter VII of the Regulation) and the national Supervisory Authorities (Chapter VI) as well as, of course, the substantive provisions of the data protection principles themselves, as EDRI pointed out in its initial comments and will detail further in the process. However, the CNIL seems to ignore the difference between a Regulation and a Directive! The very reason for the EC choice for the former is indeed the fact that a Regulation goes far beyond simply harmonizing the national laws, to rather impose the same law to all Member States, requiring in addition that same independence and powers be allowed to all national DPAs. Given this new situation, why a French citizen would be less protected by, say, the German DPA than by the CNIL? Especially since, even currently, French citizens and privacy defenders would have appreciated to see the CNIL taking the position of other Member States DPAs on some particular issues. Moreover, through the European Data Protection Board proceedings, European citizens could only benefit from the emulation among DPAs: they will have to be accountable to and controlled by each other. The national DPA would certainly not be "reduced to a mailbox" in this game, since its role will be essential here, and is guaranteed by provisions of Articles 55-56 and 66. Moreover, Article 73-75 provides for better democratic control and recourses not only by citizens, but also by non profit associations such as privacy watchdogs or human rights organizations acting in their names. The example provided by CNIL of a social network as the data controller and processor is particularly misleading and perverse: as a matter of fact, while Article 51 provision only concerns companies established in the EU, many French Members of Parliaments already interpreted this example as the future impossibility for the CNIL to impose penalty on major US companies, such as Facebook (or Google which it already sanctioned). Furthermore, the "forum shopping" risk is ridiculous: who on earth could reasonably think that a company will choose its country of main establishment according to data protection law (which, again, will in addition be the same in all EU countries), rather than on the basis of taxation and labour laws and practices?! Who on earth could reasonably think that French economy would be put at risk by the CNIL's "superpowers"?! Many other counter-arguments can be found in the text of the proposed Regulation itself (such as the provided exceptions in Articles 80-83 and other provisions as well). The fact is that, rather than raising sound arguments towards improving the current proposal (and this is indeed much needed), the CNIL currently seems to only be busy defending its turf. Ungloriously. CNIL - Draft EU Regulation on data protection: the defense of data protection driven apart from citizens (31.01.2012 original in French on 26.01.2012) http://www.cnil.fr/english/news-and-events/news/article/draft-eu-regulation-... CNIL - Draft EU regulation: the CNIL welcomes the French Parliament commitment (only in French, 08.02.2012) http://www.cnil.fr/la-cnil/actualite/article/article/projet-de-reglement-eur... French National Assembly - EU Affairs Commission Resolution on Draft EU DP Framework (only in French, 07.02.2012) http://www.assemblee-nationale.fr/13/propositions/pion4227.asp French Senate - Oral Question and public discussion on privacy and data protection (only in French, 08.02.2012) http://www.senat.fr/seances/s201202/s20120208/s20120208_mono.html#Niv1_SOM3 EDRi - Initial Comments On The Proposal For A Data Protection Regulation (27.01.2012) http://www.edri.org/CommentsDPR (Contribution by Meryem Marzouki, EDRI-member IRIS - France) ============================================================ 11. Recommended Action ============================================================ Petition: Support the establishment of a common European OpenData license within the review of the Public Sector Information re-use Directive Deadline: 1 March 2012 Available in Spanish and English http://actuable.es/peticiones/say-to-neeliekroeseu-we-want-single-opendata-l... ============================================================ 12. Recommended Reading ============================================================ EDRi papers: DRM - The strange, broken world of the digital rights management http://www.edri.org/files/2012EDRiPapers/DRM.pdf ACTA Survival Guide For Website Owners (7.02.2012) http://www.edri.org/ACTAhowto 10 European Commission Myths About ACTA (8.02.2012) http://www.edri.org/commission_myths Sharing: Culture and the Economy in the Internet Age - By Philippe Aigrain (3.02.2012) http://www.laquadrature.net/en/sharing-culture-and-the-economy-in-the-intern... ============================================================ 13. Agenda ============================================================ 25 February 2012, Szeged, Hungary Copyright and Human Rights in the Information Age: Conflict or Harmonious Coexistence http://www.juris.u-szeged.hu/english/news/conference-on-copyright 7 March 2012, Amsterdam, Netherlands Big Brother Awards Netherlands 2012 https://www.bigbrotherawards.nl/ 16 March 2012, Rotterdam, Netherlands EPSIplatform Conference: Taking government data re-use to the next level! http://epsiplatform.eventbrite.com/ 30 March - 1 April 2012, Berlin, Germany Wikimedia Chapters Meeting 2012 http://meta.wikimedia.org/wiki/Wikimedia_Conference_2012 13 April 2012, Biefeld, Germany Big Brother Awards Germany http://www.bigbrotherawards.de/ 16-18 April 2012, Cambridge, UK Cambridge 2012: Innovation and Impact - Openly Collaborating to Enhance Education OER12 and the OCW Consortium's Global Conference http://conference.ocwconsortium.org/index.php/2012/uk 2-4 May 2012, Berlin, Germany Re:Publica 2012: ACTION! http://re-publica.de/12/en 14-15 June 2012, Stockholm, Sweden EuroDIG 2012 http://www.eurodig.org/ 20-22 June 2012, Paris, France 2012 World Open Educational Resources Congress http://www.unesco.org/webworld/en/oer 2-6 July 2012, Budapest, Hungary Policies and Practices in Access to Digital Archives: Towards a New Research and Policy Agenda http://www.summer.ceu.hu/sites/default/files/course_files/Policies-and-Pract... 9-10 July 2012, Barcelona, Spain 8th International Conference on Internet Law & Politics: Challenges and Opportunities of Online Entertainment http://edcp.uoc.edu/symposia/idp2012/cfp/?lang=en 11-13 July 2012, Vigo, Spain The 12th Privacy Enhancing Technologies Symposium (PETS 2012) http://petsymposium.org/2012/ 12-14 September 2012, Louvain-la-Neuve, Belgium Building Institutions for Sustainable Scientific, Cultural and genetic Resources Commons. http://biogov.uclouvain.be/iasc/index.php 7-10 October 2012, Amsterdam, Netherlands 2012 Amsterdam Privacy Confernece http://www.ivir.nl/news/CallforPapersAPC2012.pdf ============================================================ 14. About ============================================================ EDRi-gram is a biweekly newsletter about digital civil rights in Europe. Currently EDRi has 28 members based or with offices in 18 different countries in Europe. 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 are visible on the EDRi website. Except where otherwise noted, this newsletter is licensed under the Creative Commons Attribution 3.0 License. See the full text at http://creativecommons.org/licenses/by/3.0/ Newsletter editor: Bogdan Manolea Information about EDRI and its members: http://www.edri.org/ European Digital Rights needs your help in upholding digital rights in the EU. 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