============================================================ EDRI-gram biweekly newsletter about digital civil rights in Europe Number 4.10, 24 May 2006 ============================================================ Contents ============================================================ 1. Draft Audiovisual Media Services Directive under criticism 2. Data Retention faces growing opposition in Germany 3. Set up of the Internet Governance Forum Advisory Group 4. French draft copyright law continues to be criticised 5. German Constitutional Court has outlawed preventive data screening 6. UK Government asks for the encryption keys 7. Big Brother Awards Italy 2006 8. Application of the FOI law in Macedonia 9. PM supports rejected UK ID Cards Act 10. Recommended reading 11. Agenda 12. About ============================================================ 1. Draft Audiovisual Media Services Directive under criticism ============================================================ The European Commission proposal to regulate commercial audio and video broadcasts over the Internet and mobile phones, continues to be strongly opposed by the supporters of free speech, but also tranditional and new media providers. At the meeting of Education, Youth and Culture Council in Brussels (18-19 May 2006) the proposal for a directive amending the Directive on the pursuit of television broadcasting activities was discussed . The debate covered, in particular, the following issues in relation with the proposed directive: the appropriateness and the sustainability of the distinction between linear and non-linear services; the common rules applying to both categories of services; the extent of the modernization and simplification of the television advertising and teleshopping rules. The draft Audiovisual Media Services Directive - a revision of the 1989 Television without Frontiers Directive - introduces the notion of audiovisual media services and distinguishes between "linear" services (e.g. scheduled broadcasting via traditional TV, the internet or mobile phones, which "push" content to viewers) and "non-linear" services (such as video-on-demand, which the viewer "pulls" from a network). Only a basic tier of rules would apply to non-linear services. This draft has already met oppositions and criticism at the beginning of this year being considered as unacceptable. Traditional media as well as new media and technology providers opposed the directive considering, among other things, that it would shortly be obsolete due to the fast development of technology, that it discourages innovation and that it creates a distinction between linear and non-linear broadcasting when in reality this distinction is more and more blurred by the technological development. At the press conference on 18 May, Viviane Reding, EU commissioner for Information Society and Media, had to answer accusations of censorship related to the Directive. The Commissioner stated that the directive had "nothing to do with free speech" and aimed at protecting children and that the new rules were meant to protect "basic societal values". Mrs. Reding considers the rules are only intended to apply to commercial content and that the application of Audiovisual Media Services Directive has as purpose to prevent certain programmes from being shown to children. The idea would be to harmonise rules across the whole European Union so that programme makers don't face bureaucracy every time they try and sell their products to another member country. EU regulation attacked as censorship (19.05.2006) http://www.theregister.co.uk/2006/05/19/eu_censorship/ EU Internet proposals to protect society (18.05.2006) http://go.reuters.co.uk/newsArticle.jhtml?type=internetNews&storyID=12258324 2729th Education, Youth and Culture Council meeting - Brussels, 18-19 May 2006 (provisional version) (18.05.2006) http://www.consilium.europa.eu/cms3_applications/Applications/newsRoom/LoadD... cument.asp?directory=en/educ/&filename=89661.pdf The Television without Frontiers Directive: another "directive too far"? (5.05.2006) http://www.it-analysis.com/business/content.php?cid=8476 Legislative Proposal for an Audiovisual Media Services Directive (13.12.2005) http://ec.europa.eu/comm/avpolicy/docs/reg/modernisation/proposal_2005/com20... 5-646-final-en.pdf Debates on draft directive on Television without Frontiers Directive (2.02.2006) http://www.edri.org/edrigram/number4.2/twfdirective ============================================================ 2. Data Retention faces growing opposition in Germany ============================================================ The EU directive on mandatory retention of communications traffic data went into force as an EU law on 3 May 2006, but its transposition into national laws seems more uncertain than before. 16 of the 25 member states of the EU have declared that they will delay the retention of Internet traffic data for an additional period of 18 months. The recent NSA scandal in the United States also clarified the dangers of access to the data by intelligence agencies and led a number of civil liberties groups, among which EDRi member Netzwerk Neue Medien, to protest against data retention in Europe. A draft data retention law has already been withdrawn in the House of Representatives in Washington. In the German Parliament, the Greens have drafted a resolution that would ask the Government to challenge the legality of the EU directive before the European Court of Justice and postpone its implementation on the national level until the court has made a decision. According to the not yet published text, of which EDRi was able to obtain a copy, the data retention decision should have been made in the "Third Pillar" of the European Union structure, as the sole purpose of retaining the data is the law enforcement. Therefore, the proper legislative procedure should have been a framework directive, which gives more power to national Parliaments and requires an unanimous vote on the EU Council of Ministers. The motion is so far being supported by 118 parliamentarians from all parties; the vote is scheduled for 2 June. The period for challenging the directive on these grounds ('230 of the Treaty on the European Community) will end on 10 July 2006. Even if the directive is transposed into the German law, several groups and individuals - among which the former German federal minister of the interior, Gerhart Baum - have announced that they will challenge it before the Constitutional Court. After several recent decisions by the courts against overly intrusive surveillance, retention, and data-screening practices, there is a growing indication that the court will declare the directive illegal under the human rights provisions of the German Constitution. German Parliament: Draft Resolution, "Richtlinie zur Vorratsdatenspeicherung vom EuGH pr|fen lassen" (Reviewing the Directive on Data Retention by the European Court of Justice) (in German only, 18.05 2006) http://www.edri.org/docs/German-Parliament_Draft-DR-Resolution_18-5-2006.pdf Press release by EDRi-Member Netzwerk Neue Medien together with AK Vorratsdatenspeicherung and Stop1984.de: American snooping scandal shows the need for revision of opinion in Europe (in German only, 15.05.2006) http://www.nnm-ev.de/show/135496.html ISP snooping plans take backseat (18.05.2006) http://news.com.com/2100-1028_3-6074070.html Directive 2006/24/EC on the retention of data, Official Journal of the EU, (including declarations by EU member state governments postponing internet data retention) (13.04.2006) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:105:0054:006... :EN:PDF EDRi Data Retention overview page http://www.edri.org/issues/privacy/dataretention EDRi Data Retention Wiki http://wiki.dataretentionisnosolution.com (Contribution by Ralf Bendrath, EDRi member Netzwerk Neue Medien - Germany) ============================================================ 3. Set up of the Internet Governance Forum Advisory Group ============================================================ The Internet Governance Forum Advisory Group (IGF AG) to the UN Secretary-General, selected by United Nations Secretary-General Kofi Annan on 17 May, meets in Geneva on 22-23 May to discuss the agenda and the programme of the Athens Meeting (31 October - 3 November 2006). Members of the group and observers had a two-day meeting meeting under the leadership of Nitin Desai and Markus Kummer. In an open and transparent discussion, the draft of the program included main topics for each day of the coming IGF meeting in Athens. These are : - Access ( Internet connectivity, policies and costs with following workshops on: open standards, investment incentives, etc.) - Security ( building trust online, protecting users from spam, phishing, viruses, maintain security while protecting privacy and workshops with people from technologies, ISP, CERT, law enforcement and human rights, workshops by ITU (cybersecurity) and OECD (spam toolkit) ) - Diversity ( Promoting multilinguism through IDN, and local content and Respecting geographical diversity) - Openness ( Free flow of information, ideas and access to knowledge) The IGF AG consists of 46 people from different countries and cultures and is a good example of the way the UN opened up during the WSIS process. This includes 20 representatives from the governmental sector, 10 from the business sector, 7 representing civil society and 9 from the ICANN system. All stakeholders are well represented - governments, civil society, business, and the relevant international organizations, e.g. ITU, ICANN, ISOC, IETF, International Chamber of Commerce, UNESCO, Internet registries and registrars, and others. People involved in the proceedings say that the IGF will be launched this year in Athens, but will continue in 2007 in Brazil, and in 2008. IGF website - includes webcast and transcripts of the session http://www.intgovforum.org/index.htm EDRI-gram : Consultations on Internet Governance Forum (1.03.2006) http://www.edri.org/edrigram/number4.4/igf (Contribution by Veni Markovski - EDRi-Member ISOC Bulgaria) ============================================================ 4. French draft copyright law continues to be criticised ============================================================ As a continuation of the "saga" of the French draft law on copyright and related rights of the information society (DASDVSI), the French Senate voted this month the law which continues to be severely criticised by the consumer associations as well as software companies. The Senators have adopted the law with 164 votes for and 128 against. The "for" votes came from UMP (Union pour un Mouvement Populaire) and from the radical part of RDSE (Rassemblement Democratique et Social Europeen). The socialist group of Verts (Greens) and the PCF (French Communist Party) voted against it. The law supported by the Senate has also changed the article 7, that was adopted by the Deputies and required the DRM vendors and commercial platforms to open their technology to competitors in order to make it interoperable. This brought forth the reaction of companies such as Apple or Microsoft and of the American Minister of Commerce. The senators, guided by the rapporteur Michel Thiollihre and by Renaud Donnedieu de Vabres, Minister of Culture, adopted a totally different system based on the creation of an independent administrative authority. The current text no longer guaranties the right to the private copy, which is considered as a serious blow to the consumers. The CLCV (Association Consommation, logement et cadre de vie) states a "conditioned private copy" takes away from the consumer the right to privately use a work that was acquired legally. The association considers the consumer should no longer pay for the possibility to copy, which is actually refused. Another measure considered as unrealistic is the one that holds software companies liable when their software is used for piracy. This measure also affects companies relying on open- source software. "It is the nature of open source that there is nothing we can do about a program once it is distributed," said Gilles Gravier, chief technology strategist for security at Sun Microsystems. "Also the open-source licenses are issued on a global basis. Finally, this law draft has succeeded in raising more criticism after having been voted by the Senate than after it was passed by the National Assembly in March 2006. The DADVSI law will be debated further on in a Mixed Joint Commission including seven deputies and seven senators, which has the task to reconcile the disagreements between the texts adopted by the two Assemblies. According to certain sources, this Commission would be gathered on 30 May. French iPod bill moves forward (11.05.2006) http://www.iht.com/articles/2006/05/11/business/apple.php The draft law on copyright raises vivid critics (only in French, 12.05.2006) http://www.01net.com/editorial/315533/legislation/le-projet-de-loi-sur-le-dr... it-d-auteur-suscite-de-vives-critiques/ The Senate cancels the forced interoperability (only in French, 10.05.2006) http://www.ratiatum.com/news3108_Le_Senat_supprime_l_interoperabilite_forcee. html EDRI-gram : Update on French EUCD Transposition (29.03.2006) http://www.edri.org/edrigram/number4.6/frencheucd What's so special about French EUCD transposition? (15.03.2006) http://www.edri.org/edrigram/number4.5/franceeucd ============================================================ 5. German Constitutional Court has outlawed preventive data screening ============================================================ On 22 May the German Constitutional Court has declared illegal under the German Constitution the practice of screening data across several private and public databases in order to find potential terrorists ("sleepers"). Several federal states will now have to change their police laws. The decision does not make data screening ("Rasterfahndung", literally: "grid investigation", usual transliterations: "dragnet investigation" or "data trawl") completely illegal, but binds it to very narrow conditions. The measure is still legal for investigations in specific criminal cases, as it was used against the left-wing guerrilla RAF in the 1970s, when the "Rasterfahndung" was invented. But for crime prevention purposes, it can only be done in the presence a concrete danger for the lives or liberties of persons or for the existence of the Federal Republic of Germany or a federal state (Land). This requires factual indicators for an imminent attack. A general threat condition or foreign tensions like after 9/11 2001 are not sufficient. The Federal Police Agency (Bundeskriminalamt) had coordinated such screenings, in cooperation with the state-level police authorities after the terrorist attacks of 11 September 2001. Universities, private companies, private security firms, public transport institutions, facility providers, municipal authorities, and the Federal Register of Foreign Residents were required to submit comprehensive information they had on anybody matching a set of criteria (male, aged between 18 and 40, student or former student, country of origin mainly Muslim) to the state police agencies. The latter did a screening run for matches across the different submitted databases that combined included more than 8 million people. The 31 988 hits were stored in a central file called "sleepers" and again screened by the Federal Police Agency against a database that included up to 300 000 persons who held a pilot license, were supposed to be dangerous, or matched some other criteria. The remaining several thousand persons (matches) was manually reviewed by the state police agencies. The whole exercise did not lead to a single terrorist suspect or prosecution. The plaintiff, a Morrocan citizen who studied in Germany in 2001, argued that his right for informational self-determination was breached, that the screening was an especially severe breach of fundamental rights because it took place unbeknownst to the people affected, that it was not proportionate because of the lack of factual indicators for an imminent terrorist attack in Germany, and that the criteria were discriminating him and fellow Muslims on the basis of religion. The lower courts had overturned his arguments. The official data protection commissioners, the opposition parties Greens, Liberals and Socialists, and civil liberties groups applauded the court decision and demanded an immediate stop of plans for similar measures like communications traffic data retention, license-plate screening, or the creation of new investigative powers for the Federal Police Agency for the prevention of crimes. A spokesperson of the federal Ministry of the Interior said that in international terrorism, there was only a thin line between a general and a concrete threat condition, making it difficult to apply the decision. The Bavarian Minister of the Interior, G|nther Beckstein, called the decision "a black day for the effective fight against terrorism in Germany." The association of student representatives, which had supported the plaintiff, demanded a "personal apology" from the responsible authorities for the illegal and unconstitutional discrimination of foreign and Muslim students in Germany. Up to eleven federal states will now have to change their police laws and criminal procedures acts. The decision will also have an impact on the discussion about the legality of mandatory communications data retention in Germany. The Constitutional Court explicitly re-emphasised in the reasons given for the judgement the "strict prohibition, beyond statistical purposes, of the storage of personally identifiable data on stock." ("auf Vorrat"). "Vorratsdatenspeicherung" - literally: "data storage on stock" - is the German term for data retention. Decision of the German Constitutional Court, 1 BvR 518/02 (in German only, 22.05.2006) http://www.bundesverfassungsgericht.de/entscheidungen/rs20060404_1bvr051802.... tml Press Release of the German Constitutional Court (in German only, 23.05.2006) http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg06-040.html Overview of reactions to the decision (in German only) http://www.netzpolitik.org/2006/reaktionen-auf-das-urteil-zur-rasterfahndung... Berlin Data Protection and Freedom of Information Commissioner: Special Report on the Execution of Data Screening in Berlin (in German only, 1.12.2002) http://www.datenschutz-berlin.de/infomat/sonderbericht/rasterfahndung.pdf (Contribution by Ralf Bendrath, EDRi member Netzwerk Neue Medien - Germany) ============================================================ 6. UK Government asks for the encryption keys ============================================================ The UK Home Office is planning to implement Part 3 of the Regulation of Investigatory Powers Act (RIPA). That would allow the police forces to ask for the disclosure of encryption keys, or force suspects to decrypt encrypted data. RIPA was promoted in 2000, but until now the officials have not implement Part 3. There were still voices that considered that parts I and III of the Act should be reviewed to consider whether the Act was effective in meeting its aims. However, until now, the Act has remained in its initial form . Recently, the Home Office started a consultation considering that the provisions in Part 3 would be needed to fight against an increased use of encryption by criminals, paedophiles, and terrorists. The officials are also expecting proposals for amendments to RIPA. The Home Office minister of state, Liam Byrne, told Parliament last week that "Encryption products are more widely available and are integrated as security features in standard operating systems, so the Government has concluded that it is now right to implement the provisions of Part 3 of RIPA... which is not presently in force." This decision has triggered a lot of comments and criticism from experts in the industry, considering that anyone who refuses to hand over a key to the police would face up to two years imprisonment. Experts are worried about the effects of the Act, that might push some businesses outside UK, but also about the practical solutions related to financial institutions that use such security devices. Readers and experts cited by Zdnet UK point out that the law might be impossible to enforce. The encryption expert Peter Fairbrother underlined: "It is, as ever, almost impossible to prove 'beyond a reasonable doubt' that some random-looking data is in fact ciphertext, and then prove that the accused actually has the key for it, and that he has refused a proper order to divulge it". UK Government to force handover of encryption keys (18.05.2006) http://news.zdnet.co.uk/internet/security/0,39020375,39269746,00.htm Anger over encryption key seizure threat (19.05.2006) http://news.zdnet.co.uk/internet/security/0,39020375,39270276,00.htm ============================================================ 7. Big Brother Awards Italy 2006 ============================================================
From 19 May to 20 May Florence has hosted the E-Privacy 2006 conference, organized as usual - by the Winston Smith Project with the help of several volunteers.
This edition saw a much larger participation than 2005: the participants could hardly fit the hall of Palazzo Vecchio, and several people had to stand for the whole duration of the event. The number of presentations (19) and participating organizations (14) saw a marked and unexpected growth. As usual, the Italian Big Brother Awards were given during the conference. Although none of the awards' recipients were present, a mock Darth Vader - prompting hilarity from the public - took the prizes in custody. The positive prize "Winston Smith - Privacy Hero", which was assigned in 2005 to Stefano Rodot` (former president of the Italian Privacy Authority) was won by the No1984.org group, for its relentless information work against Trusted Computing. Trusted Computing was indeed one of the central players of the whole event, as it also won the prize for "Most Invasive Technology", while the prize for "Worst Private Group" was assigned to the Trusted Computing Group, the business association that is developing the technical specs of the Trusted Computing technology. One can only deduce that the most dangerous enemy for net-privacy in the coming future has been clearly identified by netizens. Other BBA winners include Enzo Mazza, president of FIMI (Federazione Industria Musicale Italiana - Italian Music Industry Federation) for its organization's lobbying on ISP's responsibilities in copyright violation, the Italian Privacy Authority for its power (pursuant to art. 158, Legislative Decree 196/03) to enter private premises even without a judicial mandate, and Mauro Masi of the Office of the President of the Council, for blocking the ongoing reform work on Italian copyright law - which, among other things, would have moved copyright violation from the criminal to the civil sphere. E-Privacy 2006 Conference http://e-privacy.firenze.linux.it/index-e.html Big Brother Awards Italy 2006 https://bba.winstonsmith.info/ Winston Smith Project http://www.winstonsmith.info/ (Contribution by Andrea Glorioso, consultant on digital policies, and Marco Calamari, founder of the Winston Smith Project) ============================================================ 8. Application of the FOI law in Macedonia ============================================================ The Parliament of Macedonia adopted the Law on Free Access to Information of Public Character in February 2006. NGO activists made some effort to make some quality changes to the proposed law and as a result some essential recommendations were accepted and implemented in the law. Although three months have past since the adoption of the law, the Commission for protection of the right for free access to information was established only last week. According to the law, the Commission should have been appointed by the Parliament of Macedonia a month after the law was passed. According to government officials, the Commission will become operational from September this year, when the implementation of the law itself must start. It means that citizens can refer to the Commission if they think that their right to have access to information of public character is violated. On 11 May 2006 the Commission had a constitutive session and presented its tasks. In this respect, a lot of activities for raising awareness must be conducted in cooperation with NGOs in order to promote the new institution and support the successful implementation of the law. The most important task of the Commission is to provide guidance and procedures for a proper implementation of the law. Moreover, the Commission must publish a list of institutions that represent information holders. After that, the holders of public information must appoint an official FOI person in charge of dealing with FOI requests. Several NGOs are working on the monitoring of the implementation of the FOI law and conduct raising awareness activities. So far, NGOs articulated and sustained activities have had results. Hopefully, their efforts will also speed-up the process of creating an proper environment for an efficient FOI implementation in Macedonia. EDRi-gram : Freedom of Information Act in Macedonia (18.01.2006) http://www.edri.org/edrigram/number4.1/macedoniafoia (Contribution by Bardhyl Jashari, EDRI-member Foundation Metamorphosis - Macedonia) ============================================================ 9. PM supports rejected UK ID Cards Act ============================================================ Tony Blair stated a strong support for the ID card Act that was rejected by the House of Lords in January this year. The Government had considered the card as essential in the fight against crime, illegal immigration, and identity theft. However, the House of Lords required from the Government to give further clarifications related to detailed costs for such a system, a higher security in recording and storing personal data and asked for a change in one of the purposes of the system from 'securing efficient and effective provision of public services' to preventing 'illegal and fraudulent access to public services'. The 'Identity Project' report of the London School of Economics had also stated that the government proposal lacked defined goals without clearly showing the impact upon terrorism or identity theft and also considered the project as underestimated from the point of view of the costs. In endorsing the project, the Prime Minister went as far as stating "we need identity cards both for foreign nationals and for British nationals. If we want to track people coming in and out of our country and to know the identity of people who are here, then that is what we have to do." Foreign nationals are not presently included in the Act. As a response to the claims that the ID scheme is a tracking mean, Blair used 'log' or 'identify' as synonyms for 'track', considered as not a very fortunate choice of words. The Register's columnist John Lettice considers that the so called "ring of steel" promoted by Tony Blair has several failing issues. The e-Borders which is supposed to help the Government know who is coming into the country, and who is going out, even if implemented at all border entry points shows a lot of vulnerabilities. EU citizens will be able to come in and work if they like, and travellers from numerous countries don't require visas. The identity of these travellers is not certain as false documents can be obtained in these countries. Blair's plans to solve the immigration question through the application of IT will meet difficulties on several levels. Fortress Blair - PM bets on biometric ring of steel to 'fix' immigration (22.05.2006) http://www.theregister.co.uk/2006/05/22/blair_biometric_migration_fix/ EDRI-gram: UK ID card scheme - defeated in the House of Lords (18.01.2006) http://www.edri.org/edrigram/number4.1/ukidcard London School of Economics 'Identity Project' http://is.lse.ac.uk/idcard/ ============================================================ 10. Recommending Reading ============================================================
From 15 to 17 May the University of Illinois Chicago (USA) hosted the conference "FM10 Openness: Code, Science and Content". The occasion was the tenth anniversary of "First Monday", the first peer-reviewer journal born on the Internet. The final day of the conference gathered a group that brainstormed over the first draft of the "Chicago Manifesto".
Chicago Manifesto on Openness (17.05.2006)
http://blogger.uic.edu:16080/weblog/nrj/FM10/?permalink=ChicagoManifesto.htm...
&page=trackback
Website of the conference (with abstracts and papers)
http://numenor.lib.uic.edu/fmconference/
First Monday
http://www.firstmonday.org/
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11. Agenda
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14-18 June, Rathen, Germany
ICA-IAMCR Symposium on Internet Governance
http://www.ntu.edu.sg/sci/sirc/icapreconf.html
19-20 June 2006, Paris, France
New relations between creative individuals and communities, consumers and
citizens. Hosted by the TransAtlantic Consumer Dialogue (TACD)
http://www.tacd.org/docs/?id=296
19-23 June, Singapore
Euro-Southeast Asia ICT Forum (EUSEA2006) (with the EU Commission as
co-host)
http://www.eusea2006.org
21 June 2006, Luxembourg
Safer Internet Forum 2006 Focus on two topics: "Children's use of new media"
and "Blocking access to illegal content: child sexual abuse images"
http://europa.eu.int/information_society/activities/sip/si_forum/forum...
26-27 June 2006, Berlin, Germany
The Rising Power of Search-Engines on the Internet: Impacts on Users, Media
Policy, and Media Business
http://www.uni-leipzig.de/journalistik/suma/home_e.html
3-5 July, Cambridge, UK
Privacy Laws & Business, 19th Annual International Conference
"Privacy Crisis Ahead? Investing enough in data protection to strengthen
and defend your reputation"
http://www.privacylaws.com/conferences.annual.html
16 - 28 July 2006, Oxford, UK
Annenberg/Oxford Summer Institute: Global Media Policy: Technology and New
Themes in Media Regulation
http://www.pgcs.asc.upenn.edu/events/ox06/index.php
2-4 August 2006, Bregenz, Austria
2nd International Workshop on Electronic Voting 2006 Students may apply for
funds to attend the workshop until 30 June 2006.
http://www.e-voting.cc/stories/1246056/
14-16 September 2006, Berlin, Germany
Wizards of OS 4 Information Freedom Rules
http://wizards-of-os.org/
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12. About
===========================================================
EDRI-gram is a biweekly newsletter about digital civil rights in Europe.
Currently EDRI has 21 members from 14 European countries and 5 observers
from 5 more countries (Italy, Ireland, Poland, Portugal and Slovenia).
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
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