============================================================ EDRi-gram biweekly newsletter about digital civil rights in Europe Number 7.8, 22 April 2009 ============================================================ Contents ============================================================ 1. European Parliament ITRE committee votes against the 3 strikes 2. Three strikes law rejected by the French Parliament 3. The Pirate Bay founders considered guilty by the first Swedish court 4. German Government forces ISPs to put web filters 5. Finnish e-voting results annulled by the Supreme Administrative Court 6. Launch of the first European Civil Liberties Day 7. Infringement procedure against UK for lack of privacy protection 8. EDRi supports a petition for Non-Commercial Stakeholders Group 9. Dutch Government on data retention 10. Creative Commons licences launched in Czech Republic 11. Are anonymous electronic services to be prohibited by the EC? 12. ENDitorial: Why "Olivennes Bill" wouldn't work in Italy 13. Recommended Action 14. Recommended Reading 15. Agenda 16. About ============================================================ 1. European Parliament ITRE committee votes against the 3 strikes ============================================================ The ITRE - Industry, Research and Energy Committee of the European Parliament (EP) has voted in the evening of 21 April 2009 on the Trautmann report and has reintroduced amendment 138. However some of the amendments approved by the ITRE committee are still endangering the network neutrality principle. The ITRE Committee reinstated by 40 votes in favour with four votes against the Parliament's first-reading amendment 138 that now has been renumbered as amendment 46 that states that "no restriction may be imposed on the fundamental rights and freedoms of endusers, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent." This vote means that there is a clear disagreement on this topic between the EP and the Council and, after the plenary vote on 5 May, a third reading might be necessary after the European elections. Also the negotiations between MEPs and the Czech Presidency to reach an agreement on this issue will continue. The success of the European Parliament's Committe is putting pressure on the French government that will find it more difficult to push its 3 strikes law against a European directive ready to be adopted by the European Parliament. According to Jirimie Zimmermann, co-founder of La Quadrature du Net: "The European citizens will remember this courageous stand. Members of the European parliament honoured their mandates by standing courageously for citizens' rights and freedoms. This is one more blow to Nicolas Sarkozy's 'three strikes' or 'HADOPI' law in France, and a strong sign that nobody in Europe will want to pass such a stupid legislation going against progress, citizens' rights and common sense." MEP Guy Bono also rejected the French Government position: "If the French Government wants a deal on the Telecom Package, it has to give up, in the name of the general European interest, to the liberticide provisions of the draft Hadopi Law". But the ITRE committee also voted some amendments that endanger the network neutrality without any relevant debate. As Monica Horten from Iptegrity.com explains: "the UK government's amendments which seek to permit broadband providers to place restrictions on their networks, and offer preferential services without any oversight by the regulator, have found their way into Mrs Trautmann's final draft." These amendments contain the text: "any conditions limiting access to and/or use of services and applications where such conditions are allowed by Member states in conformity with Community law" Ms. Horten highlights: "Article 9.1 Access directive and Annexe 1 point 19 Authorisation directive are about limiting users access to the Internet. Article 8.2 and 8.4 support these provisions, by weaking users rights - indeed, it is no longer a right, rather users may simply be offered the ability to choose, which could be interpreted that they have the ability to choose between different packages of limitations." The deadlock on amendment 138 could mean that a third reading might be required and that would provide more comments and debates on those amendments that endanger the network neutrality. But this depends also on the plenary amendments that need to be presented by 29 April and on the vote of the plenary which could take place on 5 May. If you want to support the network neutrality please contact your MEPs before the plenary vote and support the Open Letter that EDRi has signed in order to keep the principle of no discrimination between Internet traffic data, based on content, services or applications. Open letter to the European Parliament - Telecom Package (17.02.2009) http://www.edri.org/edrigram/campaigns/open-letter-telecom-package Trautmann Report http://www.europarl.europa.eu/meetdocs/2004_2009/documents/pr/770/770260/770... Telecom markets: still no overall agreement with Council presidency (21.04.2009) http://www.europarl.europa.eu/news/expert/infopress_page/058-54125-111-04-17... Amendment 138 saved - but not the Internet (21.04.2009) http://www.iptegrity.com/index.php?option=com_content&task=view&id=321&Itemid=9 Victory for EU Citizens! Amendment 138 was voted again. (21.04.2009) http://www.laquadrature.net/en/victory-for-eu-citizens-amendement-138-was-vo... Bono amendment finally reintroduced in the Telecom Package! (only in French, 21.04.2009) http://www.numerama.com/magazine/12699-L-amendement-Bono-finalement-reintrod... Trautmann: "I assure you I am not ready to give up" (only in French, 21.04.2009) http://www.numerama.com/magazine/12698-Trautmann-Je-vous-assure-que-je-ne-su... ============================================================ 2. Three strikes law rejected by the French deputies ============================================================ On 9 April 2009, the French Parliament voted against the so called Hadopi law introducing the graduate response, against the recommendation of the Joint Mixed Commission (CMP - Commission Mixte Paritaire). The law had been voted by the National Assembly on 2 April, supported by CMP on 7 April and further on voted by the Senate. In an unexpected move, the deputies, however, decided to reject the draft law considering the text to be too hard especially by the introduction by CMP of what the opponents called the "double pain". The text was stipulating that the Internet users allegdly found to illegally download copyrighted material, after receiving two warnings, would continue to pay the access subscription while having their access cut off, for a period from two months to one year. "This is an extraordinary victory for the citizens. This vote proves it is still possible to be heard. It is a fantastic example of the use of Net to counter those who attempt to control it," said Jirimie Zimmermann, co-fonder and spokesman of La Quadrature du Net. The French Government intends to reintroduce the text to the General Assembly and the Senate. Only, it will have to change the text as it was before being introduced to the CMP. The Government would certainly wish to preserve the double pain measure in order to avoid having to pay compensations to the ISPs in case of access suspension. In the mean time, Nicolas Sarkozy, the initiator of the three strikes measure, makes pressure to block the Bono amendment from of the Telecom Package in the European Parliament. However, the ITRE committee in the EP has reintroduced the amendement, thus leaving the plenary with the final decision. The Hadopi law will be reexamined by the French National Assembly only on 29 April probably after a final decision on Bono amendment is taken, hence Sarkosy's high pressure on blocking it. The new text of the draft law is available on the National Assembly website. The Parliament rejects the draft law on illegal downloading (only in French, 9.04.2009) http://www.laquadrature.net/fr/hadopi-rejetee-a-lassemblee Hadopi rejected in the Assembly! (only in French, 9.04.2009) http://www.lemonde.fr/technologies/article/2009/04/09/le-parlement-rejette-l... Downloading: the draft law rejected (only in French, 9.04.2009) http://www.lefigaro.fr/flash-actu/2009/04/09/01011-20090409FILWWW00451-telec... New Draft Hadopi Law (only in French, 20.04.2009) http://www.assemblee-nationale.fr/13/projets/pl1618.asp EDRI-gram: French National Assembly votes for the three strikes law (8.04.2009) http://www.edri.org/edri-gram/number7.7/france-adopts-3-strikes-law ============================================================ 3. The Pirate Bay founders considered guilty by the first Swedish court ============================================================ The verdict of the Swedish court in The Pirate Bay (TBP) trial was given on 17 April 2009 with the four defendants, Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde and Carl Lundstrvm, found guilty and sentenced each to one year in prison and to pay together about 2.7 million euro in damages. The defendents already announced that they would appeal the court decision. The Court stated to the media: "By providing a website with ... well-developed search functions, easy uploading and storage possibilities, and with a tracker linked to the website, the accused have incited the crimes that the filesharers have committed." The court also said that the four defendants had been aware of the fact that copyrighted material was shared with the help of their site. The prison sentence was justified by "extensive accessibility of others' (copy)rights and the fact that the operation was conducted commercially and in an organized fashion." Therefore, the court has drawn the conclusion that not only the defendants had been aware of illegal downloading through their site but that they had taken financial advantage of it. The judgement "is just a footnote in a long process of destruction where there won't be any winners," commented Swedish newspaper Vestmanlands Ldns Tidning. Privacy advocates consider the court's decision as a wrong and dangerous movement. Christian Engstrvm, a candidate for the European Parliament from the Pirate Party said: "The Pirate Bay is a unique platform for distributing culture between regular people and independent artists, and that's something we want to preserve." Mark Mulligan, a music industry blogger and analyst, believes that the ruling will not stop illegal file sharing, pointing out that the technology is moving on and people are more and more sharing files through emails, Instant Messenger, blogs, newsgroups or iPods. Some believe the verdict may have implications for Google and its YouTube subsidiary. Newspaper Sundsvalls Tidning expects that after the David and Goliath (TPB and the recording industry) battle, a legal action between Goliath and Goliath (the industry and Google) would occur. The entertainment industry representatives however say that Google or eBay will not be affected as the former only returns some links to infringing content and the latter only hosts some auctions for pirated goods but that does not make their operations illegal. On 18 April, The Pirate Party organized protests that were attended by hundreds of people in Stockholm, Goteborg, Karlstad and Lund against the decision of the court. "The establishment and the politicians have declared war against our whole generation," said Rickard Falkvinge, Pirate Party chairman and founder at the rally in Stockholm. Mikko Valimaki from EDRi-member Electronic Frontier Finland (EFFi), commented for EDRi-gram the court decision, taking into consideration the legal similarities between Finland and Sweden and the EFFi and the local bittorrent-case Finreactor: "The Pirate Bay was not surprising to anyone familiar with our laws. The verdict goes according to the Swedish criminal law. There is not much to argue about. The only open legal issue was basically whether the acts of administrators were criminal "aiding" or "preparation" to user infringements. The district court bought the aiding theory and thus dismissed the preparation (which would have resulted probably in less damages and shorter sentences). The higher courts may disagree." Valimaki also explained the differences in judging these cases in different parts of Europe: "What is interesting here is that while we don't have indirect secondary liability doctrines in copyright law in Europe - US has for example contributory infringement and active inducement doctrines - our criminal laws can in practise create secondary liability against acts like the administration of a file sharing network. The problem is that European criminal law doctrines are not in harmony like the copyright laws are. Thus, a file sharing operator may be liable according to Finnish or Swedish criminal law but not according to say Spanish criminal law (in Spain, some file sharing operators have escaped from liability)." The ruling has not affected the PirateBay site which is still in operation and the defendants expressed their clear intention of appealing the decision which means that it might take a few years before a final decision in the matter is taken. Swedish press: file sharing still ahead of the law (18.04.2009) http://www.thelocal.se/18938/20090418/ Pirate Bay guilty (17.04.2009) http://www.thelocal.se/18908.html Entertainment industry hails Pirate Bay guilty verdict (17.04.2009) http://www.thelocal.de/sci-tech/20090417-18703.html Pirate Bay operator faces new probe (20.04.2009) http://www.thelocal.se/18974/20090420/ Pirate Bay: A treasure chest of post-verdict news (20.94.2009) http://www.theregister.co.uk/2009/04/20/pirate_bay_legal_analysis/ The Pirate Bay loads cannon with official appeal (20.04.2009) http://www.theregister.co.uk/2009/04/20/pirate_bay_aftermath/ Swedes demonstrate in support of Pirate Bay (19.04.2009) http://www.thelocal.se/18954/20090419/ EDRI-gram: Swedish Pirate Bay trial waiting now for the decision (11.03.2009) http://www.edri.org/edri-gram/number7.5/pirate-bay-trial ============================================================ 4. German Government forces ISPs to put web filters ============================================================ The German Government, through Germany's family minister Ursula von der Leyen as well as the head of the Federal Criminal Police Office (BKA), Jvrg Ziercke, signed on 17 April 2009 "voluntary" contracts with 5 large ISPs (Deutsche Telekom, Vodafone/Arcor, Hanse Net, Kabel Deutschland and Telefonica O2 that have 75 per cent of the German Internet access market) for child pornograph filtering via DNS. At the same time, a draft bill on the same topic has been initiated by the Minister for Economics, Karl-Theodor zu Guttenberg, who is in charge of the telemedia law that makes things even worst than anticipated. The bill was approved today, 22 April 2009, by the German Government. The text shows that the ISPs will be "allowed" to log who tried to access a site on the blacklist and that the police can request this information. Moreover, the blacklist can also contain sites that only link to child porn, but do not host any content themselves. The German Federal Criminal Police Office will be in charge of creating those lists and the new law obliges all providers with more than 10 000 customers (approx. 97% of all ISPs) to block porn sites on the lists. Their content will not be made public, thus leaving no possibility to check their correctness. Those who will try to access the pages from the blacklist will just see a stop sign. The Ministry of Family Affairs is estimating that the list will be "at least thousand" Web pages. The Minister has confirmed some time ago that the censorship could be extended to exclude other content from the Internet, stating: "child pornography is a problem issue and clearly identifiable," but "you can not exclude what the federal government may want to exclude in the future." However, the measure is illusory as explained by the 500 protesters that gathered in Berlin on Friday, 17 April 2009, to protest against this measure which is considered just a first step to political censorship on the web. EDRi-member Ralf Bendrath explains on netzpolitik.org the main problems of the measure: "The web filters are not just a tool to remove illegal content from the net. Web filters are a tool of censorship. If you want illegal content removed from the Internet write an email to the hosting company and with hours it will be removed. If you just put it on an Internet censorship list, you will precisely NOT remove it. Moreover, the government ignores the facts. According to scientific studies, there is no mass market for child porn on websites, and most of the material is exchanged through private networks, filesharing sites or offline. We therefore see these activities as only symbolic and part of the beginning federal election campaign, while at the same time they are establishing a dangerous general censorship infrastructure." The DNS filtering does not work, as explained by EDRi-member Chaos Computer Club. "It will be very easy to evade this filter," said a club spokesman, Matthias Mehldau. Any user that wants to bypass the Stop sign, would just need to change its DNS servers to one of the OpenDNS servers freely available on several websites. Thus, the protesters explained that in fact the money and energy spent on creating blacklists would be much better used in getting the people who are offering child porn via their servers. Also it seems that the major providers are "blackmailed" by the government to sign the "voluntary" contract, so they shouldn't be associated in connection with child pornography. Five German online companies agree to obstruct child porn (19.04.2009) http://silverscorpio.com/five-german-online-companies-agree-to-obstruct-chil... German Cabinet approves new law to ban child pornography Internet sites (22.04.2009) http://www.dailypress.com/news/nationworld/sns-ap-eu-germany-child-pornograp... Opinion on Germany's possible internet censorship (17.04.2009) http://www.matejunkie.com/opinion-on-germanys-possible-internet-censorship/ Hundreds protested in the early morning against Internet censorship (only in German, 17.04.2009) http://netzpolitik.org/2009/hunderte-protestierten-am-fruehen-morgen-gegen-i... BKA filters the Web (only in German, 17.04.2009) http://www.spiegel.de/netzwelt/web/0,1518,619509,00.html The arguments for child porn-blocking run into the void (only in German , 17.04.2009) http://www.spiegel.de/netzwelt/web/0,1518,619505,00.html Providers may log user requests (only in German, 20.04.2009) http://www.heise.de/newsticker/Kinderporno-Sperren-Provider-sollen-Nutzerzug... Draft law on child pornography on the Internet (only in German, 22.04.2009) http://www.bmwi.de/BMWi/Redaktion/PDF/Gesetz/entwurf-gesetzes-zur-bekaempfun... Thoughts on the media perception & Bill on Wednesday (only in German, 20.04.2009) http://netzpolitik.org/2009/gesetzentwurf-gedanken-zur-medialen-wahrnehmung/ Alternative DNS http://wikileaks.org/wiki/Alternative_DNS ============================================================ 5. Finnish e-voting results annulled by the Supreme Administrative Court ============================================================ The Finnish Supreme Administrative Court has ruled on the municipal elections of 2008, in which an e-voting system was piloted. In its decision, the court sided with the complainants, overturning an earlier decision of Helsinki Administrative Court and the decisions of the municipal central elections committees to confirm the election results. As a result, the three municipalities that took part in the Finnish e-voting pilot must now hold new elections as soon as possible. As the e-voting pilot has ended and the law authorizing e-voting expired in December 2008, the new elections will use a traditional paper ballot system. The Supreme Administrative Court decision was based on two issues: first, the voting instructions that the voters had received by mail were incorrect, and second, the user interface of the e-voting terminals was deemed to be flawed. The voting process utilized a smart card given to each voter, and upon premature removal of the card, the voting terminals gave no indication that the vote was not cast. As the system did not use a voter-verified paper ballot, voters might have been left with an impression that the vote had in fact been cast. It is notable that the Court did not address the general lawfulness of e-voting. According to the Finnish law authorizing e-voting, electronic ballot boxes would need to be archived until the next election. These electronic ballot boxes contain encrypted information on who voted and how. This poses a risk to voter secrecy. However, the Court declined to rule on whether this is unlawful, or whether the electronic ballot box would need to be destroyed. In addition, the Court did not address the question of whether an e-voting system would need to be more transparent. A significant amount of system design in the Finnish e-voting pilot was declared 'trade secret', and the system source code is closed. The Court decision still leaves an open question whether paperless, 'black box' e-voting systems could be fielded in the future. Electronic Frontier Finland (Effi) press release on the Court decision (only in Finnish, 9.04.2009) http://www.effi.org/julkaisut/tiedotteet/lehdistotiedote-2009-04-09.html E-voting appeal won: we have new elections! (9.04.2009) http://www.turre.com/2009/04/e-voting-appeal-won/ Effi's e-voting 'shadow report' in English (1.09.2008) http://www.effi.org/blog/2008-09-01-evoting-report-in-english.html Finnish e-voting system must not stay a trade secret (11.02.2008) http://www.effi.org/system/files?file=FinlandEVotingTradeSecret_20080211.txt Council of Europe report on the Finnish e-voting pilot (1.12.2008) https://wcd.coe.int/ViewDoc.jsp?id=1380337&Site=Congress Supreme Administrative Court decision (only in Finnish, 9.04.2009) http://www.kho.fi/paatokset/46372.htm EDRi-gram: An error margin of 2% in municipal elections ruled acceptable in Finland (11.02.2009) http://www.edri.org/edri-gram/number7.3/evoting-finland-2percent (contribution by EDRi-member Electronic Frontier Finland) ============================================================ 6. Launch of the first European Civil Liberties Day ============================================================ Earlier this month, over a hundred politicians, journalists and campaigners attended the launch of the first European Civil Liberties Day - 15 April at the European Parliament. Organised by the Liberals and Democrats group (ALDE), the event featured speeches from MEPs and NGOs on human rights and the protection of minority groups such as Roma and lesbian, gay and transgender Europeans. Event organiser Alexander Alvaro MEP and ALDE leader Graham Watson MEP both spoke of government attempts to "encroach on the liberty, privacy and choice that all free citizens should enjoy." Katarina Kresal, the Slovenian Minister of Interior, described her conviction that freedom must be a central concern of governments. Responses came from campaigners of th International Federation of Human Rights (FIDH), the European Newspaper Publishers4 Associations, the European Roma Policy Coalition, ILGA Europe and EDRI, whose speech you can read below. There is much more information available from the ALDE website on the day and the group's plans to campaign for human rights and fundamental freedoms. With the European elections only 6 weeks away, this is a critical moment for voters who want to see human rights strongly supported in the next European Parliament. EDRI speech, given by Ian Brown (EDRI-members FIPR and Open Rights Group): It's great to see today's launch of European Civil Liberties day. Coming from the UK, which Privacy International now rates as the worst surveillance state in the EU, I need all the optimism I can get. We have millions of CCTV cameras; an illegal DNA database of over 5m profiles including nearly 100,000 under-13s; and out-of-control Internet surveillance with 519,000 government accesses in 2007 to people's communications records. The UK and its allies have been pushing this surveillance agenda at the European level, most noticeably with the Data Retention Directive but more subtly with the exchange of travel records with the US and a "principle of availability" that allows law enforcement databases to be shared across the EU. Some of the member states are looking forward to much, much more electronic surveillance of their citizens. The Portuguese presidency in 2007 envisaged a "digital tsunami", where "Every object the individual uses, every transaction they make and almost everywhere they go will create a detailed digital record. This will generate a wealth of information for public security organisations". The former UK intelligence coordinator Sir David Omand recently added: "The realm of intelligence operations is of course a zone to which the ethical rules that we might hope to govern private conduct as individuals in society cannot fully apply." This surveillance on steroids is being pushed by governments with little evidence it will prevent terrorism or reduce serious crime. Detailed criminological studies have found that CCTV cameras reduce crime levels by only around 2%, except in very specific circumstances such as indoor car parks. The US National Research Council recently concluded that "there is not a consensus within the relevant scientific community nor on the committee regarding whether any behavioral surveillance or physiological monitoring techniques are ready for use at all in the counterterrorist context given the present state of the science." Liberals and democrats should campaign for a different kind of information society, where the human rights of citizens remain centre-stage, as they have been in Europe for the last sixty years and as they are proudly proclaimed in the EU's new Charter of Fundamental Rights. Members of Parliament must continue to stand up for citizens' rights in the face of anti-democratic attempts by some Council members to turn the EU into a surveillance society. Today's launch is a very positive step in that effort. Liberalism, democracy and privacy in Europe (16.04.2009) http://dooooooom.blogspot.com/2009/04/liberalism-democracy-and-privacy-in.ht... ALDE Civil Liberties http://civiliberties.eu/ (contribution by Ian Brown - EDRI-members FIPR and Open Rights Group - UK) ============================================================ 7. Infringement procedure against UK for lack of privacy protection ============================================================ On 14 April 2009, Viviane Reding, the European Union's Commissioner for Information Society and Media, reasserted the intention of the European Commission to take action if EU Member States failed to ensure the right of the citizens to control how their personal information is used by new technologies such as behavioural advertising (e.g. Phorm, Radio Frequency Identification (RFID) chips or online social networking). Viviane Reding warned that RFID chips integrated in products to send radio signals, should be used "by the consumer and not on the consumer. No European should carry a chip in one of their possessions without being informed precisely what they are used for, with the choice to remove or switch it off at any time." The Commissioner also asked the social networking companies which she considered businesses based on the use of information considered private, to reinforce privacy protection online: "Privacy must in my view be a high priority for social networking providers and their users. I firmly believe that at least the profiles of minors must be private by default and unavailable to internet search engines. The European Commission has already called on social networking sites to deal with minors' profiles carefully, by means of self-regulation. I am ready to follow this up with new rules if I have to." The EU Commission has also decided to start infringement proceedings against the UK as a result of the complaints about the Phorm interception and profiling technology. The Commission's action does not only refer to the Phorm case but addresses several problems with UK's implementation of EU ePrivacy and personal data protection rules, that have occurred during the Commission's inquiry on Phorm secret trials made in UK by BT. After having sent several letters to the UK authorities since July 2008 asking for clarifications on the Phorm case, the Commission considered the answers of the UK Government as unsatisfactory. "We have been following the Phorm case for some time and have concluded that there are problems in the way the UK has implemented parts of EU rules on the confidentiality of communications. I call on the UK authorities to change their national laws and ensure that national authorities are duly empowered and have proper sanctions at their disposal to enforce EU legislation on the confidentiality of communications. This should allow the UK to respond more vigorously to new challenges to ePrivacy and personal data protection such as those that have arisen in the Phorm case. It should also help reassure UK consumers about their privacy and data protection while surfing the internet," stated Reding. According to the UK law, it is an offence to unlawfully intercept communications but the scope of the offence is limited to "intentional" interception and the interception is considered lawful when the interceptor has "reasonable grounds for believing" that consent to interception has been given. The Commission is also concerned by the fact that the UK does not have an independent national supervisory authority dealing with such interceptions. It asked that the UK change its legislation to protect communications from surveillance or interception more in line with European Union directives on the issues. "Technologies like internet behavioural advertising can be useful for businesses and consumers but they must be used in a way that complies with EU rules. These rules are there to protect the privacy of citizens and must be rigorously enforced by all Member States," said the Commissioner. The UK has been given two months to react to this stage of the infringement proceeding, and in case there is no reply or the answer is not satisfactory, the Commission may consider issuing a reasoned opinion (the second stage in an infringement proceeding). If, further on, the UK still fails to fulfil its obligations under the EU law, the Commission will then refer the case to the European Court of Justice. Citizens' privacy must become priority in digital age, says EU Commissioner Reding (14.04.2009) http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/571 EU Commissioner threatens action on social networking, RFID privacy (15.04.2009) http://www.out-law.com//default.aspx?page=9948 EU targets online behavioural adverts (15.04.2009) http://www.euractiv.com/en/infosociety/eu-targets-online-behavioural-adverts... UK's privacy laws illegally inadequate, says Europe (14.04.2009) http://www.out-law.com/default.aspx?page=9945 Commission launches case against UK over privacy and personal data protection (14.04.2009) http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/570&format=HTML&aged=0&language=EN&guiLanguage=en Phorm, Commission v. UK - Implications for Ireland? (15.04.2009) http://www.tjmcintyre.com/2009/04/phorm-commission-v-uk-implications-for.htm... EDRIgram: Phorm - under scrutiny at the European level (8.04.2009) http://www.edri.org/edri-gram/number7.7/phorm-eu-scrutiny ============================================================ 8. EDRi supports a petition for Non-Commercial Stakeholders Group ============================================================ On 15 April 2009 EDRi signed, together with other 50 organisations representing the civil society from around the world, the Global Civil Society Statement in support of Petition for a Non-Commercial Stakeholders Group (NCSG) at ICANN. The petition sent by the Non-Commercial User Constituency (NCUC) will create an organizational structure that can accommodate the full breadth and diversity of non-commercial interests concerned with domain name policy. The NCSG petition encourages inclusiveness and cooperation among different viewpoints, facilitates minority representation, fosters the generation of new policy proposals, and establishes councilors and officers that are representative of and serve the needs of the entire Stakeholder Group membership. The NCSG petition also maintains a light-weight and adaptable framework as is required for effective policy development at ICANN. The statement forsees support for the proposed NCUC NCSG Charter and asks the ICANN Board of Directors to encourage wider non-commercial civil society participation in ICANN. Global Civil Society Statement in Support of Petition for a Non-Commercial Stakeholders Group at ICANN (15.04.2009) http://ipjustice.org/wp/2009/04/15/global-civil-society-statement-in-support... NCUC petition for a Non-Commercial Stakeholder Group (NCSG) http://gnso.icann.org/en/improvements/ncsg-petition-charter.pdf The Executive Summary of the NCUC petition http://gnso.icann.org/en/improvements/executive-summary-ncsg-proposal.pdf ============================================================ 9. Dutch Government on data retention ============================================================ The answers of the Dutch Government to the additional set of questions sent by the Dutch Senate about the implementation of the Data Retention Directive reveal some interesting opinions. At the end of 2008 the Dutch Senate held a hearing with technical experts and a plenary debate about the implementation proposal later is expected this Spring. The Dutch Government sees the current proposal for data retention as being of a limited nature. It already points to a possible extension of data retention at the European level, in particular a drastic extension of data retention obligations with regard to online communications, as well as its term. Also the Government downplays the interference with fundamental rights: "The risk of the interference with the private life of data subjects consists primarily of the image that these data provide of communicative behavior. On that point, there is little difference with the specified bills that telecom providers offer as an extra service. In addition, there is a risk of linking the data to criminal activity of persons. However, a similar risk is also present in the context of requests for license plate information by the police. The Criminal Procedural Code stipulates strict conditions for the access to data by law enforcement officials. The above does not alter the fact that subjects have a right that the data about their communications are being processed with exceptional care." No responsibility is taken by the Dutch government to legitimate the interference with fundamental rights but points towards the European legislature: "With regard to the necessity of the interference in a democratic society, there is a margin of appreciation for the member states. The data retention obligation, however, follows from a European directive and the (Dutch) data retention term falls within the limitations of the Directive." At the same time, the government endorses the judgement of the ECJ and gives the primary argument why the Court should have struck it down. The government states explicitly why differences between data retention obligations between the member states cannot harm the competitiveness within the internal market. There is still a level playing field. The negative effects on the internal market were the reason why the directive was legally adopted (in the ECJ's eyes). Another interpretation of the data retention directive is given in a recent answer from the European Commission to a question asked by MEP Alexander Alvaro which shows that the data retention directive does not cover services provided free of charge. The answer points to the wording of Article 50 of the Treaty establishing the European Community that "does not require that the remuneration for the service is charged to the user or subscriber of the service; it covers also cases where remuneration is paid by a third party. The definition covers in particular services of a commercial character. On the other hand, an activity which is not of an economic or commercial character itself or linked to such an activity does not constitute a service in the meaning of the Treaty" and thus is not subject to the directive provisions. Dutch Government already thinks about extending data retention at European level (14.04.2009) http://www.jorisvanhoboken.nl/?p=269 Answers from the Dutch Government (only in Dutch, 9.04.2009) http://www.eerstekamer.nl/behandeling/20090409/nadere_memorie_van_antwoord Written question by Alexander Alvaro (ALDE) to the Commission: Subject: Services provided free of charge in the context of data retention (18.02.2009) http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2009-0... E-0969/09EN - Answer given by Mr Barrot on behalf of the Commission (16.04.2009) http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2009-0969&language=EN (Thanks to EDRi-member Joris van Hoboken - Netherlands) ============================================================ 10. Creative Commons licences launched in Czech Republic ============================================================ The localized version of the Creative Commons licences was launched on 15 April in the Czech Republic, which has become the fifty-second jurisdiction worldwide to offer localized Creative Commons licenses. Following extensive consultation with local and international legal experts and in close collaboration with Creative Commons International, Creative Commons Czech ported the licenses and celebrated their launch at an event during the Multiplace festival in Prague on 16 April 2009.. CC Czech has gathered a lot of supporters since its inception last year. Besides the project institutional hosts, EDRi-member Iuridicum Remedium (IuRe), the National Library in the Czech Republic and the Union of Independent Authors, CC Czech has also received endorsement from the Copyright Department of the Ministry of Culture and Faculty of Philosophy and Arts, Charles University of Prague. The team reports: "The joint forces of lawyers, librarians, musicians, teachers, artists, geeks, journalists and other specialists delivered not only what we were aiming for - the localized CC deeds and legal codes - but also proof that the ideas behind CC echo in many areas both professional and amateur. From archiving original Czech web content to educational materials and works from independent music producers and performers, CC opens up a wide spectrum of possibilities. There is no doubt the today's launch is only the beginning of the Czech Creative Commons story." Marek Tichy from IuRe commented: "Common people are more and more becoming creative. Many of them write and post their works on the Internet. The copyright has been rather constricting with this easy distribution of creative works." Creative Commons - Czech Republic http://www.creativecommons.cz/ Creators Celebrate Local Creative Commons Licenses in the Czech Republic (15.04.2009) http://creativecommons.org/press-releases/entry/14018 Select a CC Licence (in Czech) http://staging.creativecommons.org/license/?lang=cs Creative Commons licences available in Czech Republic (17.04.2009) http://praguemonitor.com/2009/04/17/creative-commons-licences-available-czec... ============================================================ 11. Are anonymous electronic services to be prohibited by the EC? ============================================================ Having in view the data retention law requirements and the fact that data retention can be avoided by the use of anonymous services, the question arises whether anonymous electronic systems will be prohibited as well by the European Commission (EC). In this sense, Swedish MEP Jens Holm has recently addressed this issue to the Commission as he considers reliable systems are necessary in order for private individuals or companies to be able to provide anonymous information in relation to criminal or financial crime trials. Some individuals may not dare to contact the police or the mass media, preferring to send anonymous emails with important information they may hold. Holm asked the EC whether it intended to prepare a proposal to prohibit such services within certain fields, whether the Commission believed the Member States had the right to prohibit such services and whether it considered that the right to electronic anonymity should be guaranteed in the EU. EC Vice-President Jacques Barrot, Responsible of Justice, Freedom and Security answered on behalf of EC stating that there were no current plans for the EC to submit a proposal to prohibit the use of anonymising services but that the Commission was studying the impact of such services "on the ability of law enforcement bodies to provide security to the citizens in the EU." While the need to maintain the possibility of providing information anonymously to the relevant organizations had to be considered, in EC's opinion, the Member States had the responsibility to safeguard their internal security. In case anonymising services might limit their possibility to do so, "they may consider regulating the use of these services, while respecting the European Convention on Human Rights and other principles and guarantees regarding civil liberties in Europe and their obligations under the Treaties. Any such measures must be duly justified and must be proportionate and limited to what is necessary in a democratic society." Barrot answered that the EU legislation provides for the fundamental right to protection of personal data and that "personal data must be processed fairly and lawfully, including the data minimisation principle. This principle may be furthered by the use of anonymous data wherever possible." However, the EC leaves room for future restrictive actions. "Member States may adopt measures to restrict the scope of these principles which are necessary to safeguard important public interests such as national security or law enforcement, including combating terrorism or fighting cybercrime." European Commission position on anonymisers (12.04.2009) http://www.tjmcintyre.com/2009/04/european-commission-position-on.html Written Question by Jens Holm (GUE/NGL) to the Commission - Anonymity services http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=E-2009-0897&language=EN Parliamentary questions- Answer given by Mr Barrot on behalf of the Commission (3.04.2009) http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2009-0897&language=EN ============================================================ 12. ENDitorial: Why "Olivennes Bill" wouldn't work in Italy ============================================================ "Olivennes Bill" (named after the French lobbyist who proposed it, also known as Hadopi law or 3 strikes law) on copyright protection has been blocked by the French Parliament a couple of days ago (but there is little doubt that French Government will try to have it approved ASAP). If (better, when) passed, this bill would have enforced a "parallel indictment system" handled by an "independent" authority called HADOPI acting as an actual Justice Court, that is given the power to decide, without a fair trial, whether a person deserves to be disconnected by the Internet after being warned twice by copyright holder through the concerned Internet Access Provider. Entertainment Industry lobbyists like this approach very much and are pushing hard to have Italy enforce it too. "The Problem" is - fortunately - that Olivennes Bill Italian version would be affected by serious legal and Constitutional flaws, thus making it impossible to pass, for a number of reasons. First, the Italian Code of electronic communication (L.259/03) sect. 4 para I letters f) g) and h) make network neutrality mandatory. To impose over Access Providers' shoulder filtering duties or any other technological activity limiting the way Italian Public Network (rete pubblica di comunicazioni) works, would be what the Code calls "discrimination among specific technologies" and "forcing the use of a particular technology against others". Second, the Access Providers would be forced to report to the Public Authorities their users' criminal behaviour by fault of cross-combination between legislative decree 70/2003 (enforcing EU directive 31/00 on e-commerce and access/content providers online liability) and sect. 171 bis et al.of Law 633/41(Italian Copyright Law). Legislative Decree 70/2003, in fact, makes an Access Provider non-automatically accountable for its users' actions, provided that it doesn't willingly become part of those actions. Furthermore, the Decree says that the Access Provider must report to the police forces any criminal misconducts as soon as he's been given sound evidence of a criminal behaviour committed by an Internet user, thus forcing the prosecutor to start a criminal investigation. All this is possible because Italian Copyright infringement provisions are "designed" to be mandatorily investigated by the Public Prosecutor. Then, should Italy enforce an Olivennes-like legislation, there would be a "double trial" for the same (alleged) fact: the first - real - under a Court scrutiny, the second - "mock" - run by an "independent" authority, leading to a conflict of public powers. Third, as a side question, nobody told Mr. Olivennes that his bill is oddly similar to ancient Western Europe Barbarian laws, where it didn't matter who the actual culprit was, because the victim had the right to retaliate against any other culprit's family member. This is what Mr. Olivennes proposes: to seclude a whole family or company from the Internet for the (alleged) wrongdoing of a single member. Not bad, as an exercise on democracy. http://blog.andreamonti.eu/?p=140 (contribution by Andrea Monti - EDRi-member ALCEI - Italy) ============================================================ 13. Recommended Action ============================================================ The European Parliament will vote tomorrow, 23 April 2009, in the plenary on the copyright term extension directive. A cross party platform of MEPs have tabled an amendment to reject the proposal to extend the term of sound copyrights beyond 50 years. Contact your MEPs in Strasbourg and ask them to support the rejection amendment tabled by Sharon Bowles, Andrew Duff and Olle Schmidt ALDE, Guy Bono, PSE, Christofer Fjellner, Zuzana Roithova, Anna Ibrisagic EPP. http://www.soundcopyright.eu/act http://www.edri.org/reject-term-extention-directive http://www.openrightsgroup.org/2009/04/17/european-parliament-votes-on-copyr... http://www.openrightsgroup.org/2009/04/21/last-day-to-tell-your-mep-do-not-e... ============================================================ 14. Recommended Reading ============================================================ The ACTA Threat To The Future Of WIPO (14.04.2009) http://www.ip-watch.org/weblog/2009/04/14/the-acta-threat-to-the-future-of-w... Presentations - Second PrivacyOS Conference https://www.privacyos.eu/index.php?option=com_content&view=section&layout=blog&id=5&Itemid=54 ============================================================ 15. Agenda ============================================================ 23-24 April 2009, Brussels, Belgium The future of intellectual property - Creativity and innovation in the digital era http://www.intellectualproperty-conference.eu 23-24 April 2009, Amsterdam, Netherlands Second European Licensing and Legal Workshop organized by Free Software Foundation Europe http://www.fsfeurope.org/news/2009/news-20090323-01.en.html 11 May 2009, Brussels, Belgium GigaNet is organizing the 2nd international academic workshop on Global Internet Governance: An Interdisciplinary Research Field in Construction. http://giganet.igloogroups.org/publiclibr/giganetcos/2009brusse 13-14 May 2009 Uppsala, Sweden Mashing-up Culture: The Rise of User-generated Content http://www.counter2010.org/workshop_call 19-20 May 2009, Brussels, Belgium Personal data - more use, more protection? http://ec.europa.eu/justice_home/news/events/news_events_en.htm#dp_conferenc... 22-23 May 2009, Florence, Italy E-privacy: Towards total control http://e-privacy.winstonsmith.info/ 23 May 2009, Florence, Italy Big Brother Award Italia 2009 http://bba.winstonsmith.info/ 24-28 May 2009, Venice, Italy ICIMP 2009, The Fourth International Conference on Internet Monitoring and Protection http://www.iaria.org/conferences2009/ICIMP09.html 1-4 June 2009, Washington, DC, USA Computers Freedom and Privacy 2009 http://www.cfp2009.org/ 5 June 2009, London, UK The Second Multidisciplinary Workshop on Identity in the Information Society (IDIS 09): "Identity and the Impact of Technology" http://is2.lse.ac.uk/idis/2009/ 28-30 June 2009, Torino, Italy COMMUNIA Conference 2009: Global Science & Economics of Knowledge-Sharing Institutions http://www.communia-project.eu/conf2009 2-3 July 2009, Padova, Italy 3rd FLOSS International Workshop on Free/Libre Open Source Software http://www.decon.unipd.it/personale/curri/manenti/floss/floss09.html 13-16 August 2009, Vierhouten, The Netherlands Hacking at Random http://www.har2009.org/ 23-27 August 2009, Milan, Italy World Library and Information Congress: 75th IFLA General Conference and Council: "Libraries create futures: Building on cultural heritage" http://www.ifla.org/IV/ifla75/index.htm 10-12 September 2009, Potsdam, Germany 5th ECPR General Conference, Potsdam Section: Protest Politics Panel: The Contentious Politics of Intellectual Property http://www.ecpr.org.uk/potsdam/default.asp 16-18 September 2009, Crete, Greece World Summit on the Knowledge Society WSKS 2009 http://www.open-knowledge-society.org/ 17-18 September 2009, Amsterdam, Netherlands Gikii, A Workshop on Law, Technology and Popular Culture Institute for Information Law (IViR) - University of Amsterdam Call for papers by 1 July 2009 http://www.law.ed.ac.uk/ahrc/gikii/2009.asp 21-23 October 2009, Istanbul, Turkey eChallenges 2009 http://www.echallenges.org/e2009/default.asp 24-25 October 2009, Vienna, Austria 3rd European Privacy Open Space http://www.privacyos.eu 25 October 2009, Vienna, Austria Austrian Big Brother Awards Deadline for nominations: 21 September 2009 http://www.bigbrotherawards.at/ 16 October 2009, Bielefeld, Germany 10th German Big Brother Awards Deadline for nominations: 15 July 2009 http://www.bigbrotherawards.de/ 15-18 November 2009, Sharm El Sheikh, Egypt UN Internet Governance Forum http://www.intgovforum.org/ ============================================================ 16. About ============================================================ EDRI-gram is a biweekly newsletter about digital civil rights in Europe. Currently EDRI has 29 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 visibly 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 <edrigram@edri.org> 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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